Minnesota Client Alert
Legal News for Minnesota Employers
September  2016
James B. Sherman
Although pregnancy itself is not a disability under the Americans with Disabilities Act, pregnancy-related conditions that substantially limit an employee's major life activities, even temporarily, may entitle the employee to accommodations for her condition.  If a pregnant employee states that she cannot work, or cannot perform certain job functions, employers should engage in an interactive process with the employee to determine whether her condition can be reasonably accommodated within her current position, and if not, whether there are other vacant positions for which she is qualified, with or without reasonable accommodations.  It is this last step that is the subject of a recent lawsuit brought by the EEOC.  According to the EEOC's Complaint, A bank manager was unable to work for the majority of her pregnancy, due to a medical condition.  After allowing the employee several months of leave, her employer informed her that if she was not released to return to work, she would be replaced, but she was free to apply to other open positions.  To assist her, she was given access to third-party redeployment services.  However, despite applying for multiple open positions for which she met the minimum qualifications, both before and after she was eventually terminated, she was not placed into any of these positions.  The EEOC claimed that this amounted to illegal discrimination on the basis of her pregnancy, and the failure to accommodate the same.  

Arbitration agreements are a common tool many employers use as an alternative to going to court to resolve disputes with their employees.  Arbitration has the potential to be a faster, cheaper, and more private way to resolve disputes, with more finality.  One of the biggest advantages many employers see in arbitration is the ability to resolve disputes individually rather than as part of a class action.  However, the NLRB has determined that, in its opinion, these waivers violate employees' right under federal labor law to engage in "concerted activities" for their "mutual aid or protection."  This has caused uncertainty as to the legality of such class action waivers in arbitration agreements in the employment arena.

Proposed DOL Remains in the Spotlight, Settling Wage and Hour Claims Brought by Its Own Employees and Fighting Opposition to its Controversial New Overtime Rule

The Department of Labor recently paid $7 million to settle claims that it failed to pay DOL employees overtime for time they were "suffered or permitted to work," dating back to 2006.  The DOL is the government agency that enforces the FLSA's requirements that employers pay minimum wage and overtime based on "hours worked."  Many private employers have been the target of stepped up efforts by the DOL in the form of audits and lawsuits in recent years.  If misery loves company, however, the DOL has been accused of doing exactly the same thing that it regularly accuses employers of doing. The size of the settlement is no different than what many employers in the private sector have had to pay (and more) to resolve these sorts of claims, which typically are brought as class actions. 

minimumMinneapolis Office of Wessels Sherman is Piling Up Victories for Our Clients in 2016

Believe it or not, we here at Wessels Sherman are reluctant to toot our own horn the way others in our profession are known to do.  However, a recent spate of victories by our Minneapolis office on behalf of some very happy clients - in arbitration, in court, and before federal and state agencies in Minnesota and Wisconsin - seems like a good excuse to brag a bit.  Besides, it is impossible to keep the many kudos I've been getting lately from so many clients from going to my head just a little, such that I feel compelled to share with our readers a few of the recent wins our Minneapolis office has achieved with our clients.
  • Prevailed in arbitration regarding a grievance over prescription drug coverage under union contract language negotiated in the wake of the Affordable Care Act (Obama Care).
  • Secured the Equal Employment Opportunity Commission's (EEOC) dismissal of race/national origin discrimination claims.  
  • Obtained dismissal of two separate Minnesota Department of Human Rights (MDHR) age discrimination claims against the same employer, and when one of the cases was appealed it was affirmed by the Commissioner.
  • Had previous Wisconsin Equal Rights Division (ERD) and LIRC decisions dismissing age discrimination claims, affirmed on appeal for judicial review before the La Crosse County  Circuit Court.  
  • Won dismissal of disability discrimination claims by the EEOC, following a lengthy investigation.
Note that I say above that these wins were achieved "with," and not "for" our clients.  I say this very consciously because prevailing in court, in arbitration, or before federal and state administrative agencies such as the EEOC, MDHR, or ERD takes a team effort where we as lawyers spearhead the defense and legal strategies, but always with solid facts and evidence provided by our clients.  It is truly an honor to work with great clients to prove that they've done nothing wrong and to win; it is why we love doing what we do!  
Our annual, multi-state super seminar on all things labor and employment law for business owners, human resources professionals, accounts, attorneys, etc. Will take place at the Radisson Blu Hotel at the Mall of America on Friday, April 28th, 2017
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Did You Know?
Wessels Sherman has well-staffed offices with experienced attorneys to assist with our readers' legal needs in Wisconsin, Illinois and Iowa too. Businesses with operations/matters in these states are encouraged to call any of our attorneys for assistance. Additionally, Wessels Sherman attorneys regularly work with other lawyers as a highly cost-effective and trusted co-counsel and local counsel. Referrals are always appreciated and respected.