How To Avoid Workers Compensation Retaliation Claims

Retaliation claims have become increasingly prevalent in recent years, reasonably causing employers to think twice before taking an adverse employment action. In particular, prudent employers often consider all relevant facts and appearances before terminating the employment of a worker who has filed a claim for workers compensation benefits.

Minnesota law prohibits an employer from “discharging or threatening to discharge an employee for seeking workers compensation benefits or in any manner intentionally obstructing an employee seeking workers’ compensation benefits.” Minn. Stat. § 176.82. This anti-retaliation provision provided the basis for an employee’s recent civil claim against his employer when he was discharged shortly after experiencing a workplace injury. See Anderson v. North American Gear & Forge, No. A15-0966 (Minn. Ct. App. January 11, 2016).

Anderson unfortunately had a small piece of hot metal get behind his safety glasses and slightly burn the skin near his eye. He informed his supervisor who in turn helped Anderson initiate a workers compensation claim. Seeing the injury as minor, the supervisor allegedly resisted Anderson leaving work to see a doctor. Nonetheless, the supervisor let him go. The doctor cleared Anderson to return to work without restrictions with only a “tiny burn” next to his eye with no eye damage. Anderson stayed home the next day and saw another doctor who also returned him to work immediately without restrictions. The following day Anderson returned to work, but wanted to leave early to again see the original doctor. His supervisor again allegedly resisted, but permitted him to leave. The doctor again found no workplace restrictions. Anderson did not return to work until the following week. When Anderson returned, his supervisor terminated his employment for excessive absenteeism. Anderson was already on a final warning regarding his attendance. Anderson then sued claiming violation of Minn. Stat. § 176.82.

The Minnesota Court of Appeals affirmed dismissal of Anderson’s retaliation claim. In doing so, the court noted that despite having an allegedly hostile attitude toward Anderson’s injury, the supervisor nonetheless assisted Anderson in filing a workers compensation claim and permitted Anderson to leave work for doctor’s visits. The court also noted that in processing Anderson’s claim, the company followed its standard policy. Having done so, the employer was able to show that Anderson’s discharge was the result of his unexcused absences following his medical release to return to work without restrictions, in combination with the other absences which had already led to his final warning.

Takeaway: Employers should evaluate all relevant circumstances in assessing the risk of a retaliation claim when discharging an employee. In particular, an employer can minimize the risk of a workers compensation retaliation claim by following its standard policy, promptly assisting the injured employee in filing for benefits, and reasonably permitting the employee an opportunity to seek medical treatment and evaluation.

Minnesota Supreme Court Affirms Six-Year Statute of Limitations For Certain Whistleblower Claims

On January 20, 2016, the Minnesota Supreme Court issued a decision holding that a six-year statute of limitations applies to whistleblower claims brought under Subdivision 1(1) of the Minnesota Whistleblower Act (MWA).  Ford v. Minneapolis Public Schools, A13-1072 (Minn. Jan. 20, 2016).

Subdivision 1(1) of the MWA creates a claim when an employee is discharged because she reports in good faith a suspected, planned, or actual violation of any federal or state law or common law or rule adopted pursuant to law to an employer or any governmental body or law enforcement official.  Minn. Stat. § 181.932, subd. 1(1).   Yvette Ford alleged that she was terminated after having had repeatedly reported to her employer purportedly unethical and illegal activities.

In December 2014, the Minnesota Court of Appeals determined that a six-year – rather than a two-year – statute of limitations applied to Ford’s claim.  The Minnesota Supreme Court has now affirmed this application of the six-year period found in Minn. Stat. § 541.05, subd. 1(2) regarding “liability created by statute” to claims under Subdivision 1(1) of the MWA.  In doing so, the Supreme Court concluded that the two-year period found in Minn. Stat. § 541.07(1) was inapplicable because claims under Subdivision 1(1) of the MWA were not based on common law causes of action not created by statute.  See Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683, 686 (Minn. 2013).  As the so-called “reporting” claims under Subdivision 1(1) have no counterpart in Minnesota common law, the Supreme Court held that the longer statute of limitations applies.

Interestingly, the Supreme Court noted in Ford that it has, however, recognized a common law cause of action based on an employee’s discharge for refusing to violate the law.  Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 571 (Minn. 1987).  The statutory counterpart to this common law “refusal” claim is found in Subdivision 1(3) of the MWA.  While the Supreme Court did not decide in Ford the applicable limitations period for Subdivision 1(3) claims, based on the court’s analysis, it is possible that the two-year period could apply to such claims.  In response to the defendant employer’s argument that such an anomaly could result from the court’s decision, the Supreme Court noted that this policy argument was instead one for the Legislature to consider.

Takeaway:  The Minnesota Supreme Court has affirmed that MWA “reporting” claims under Subdivision 1(1) are subject to a six-year statute of limitations.  It is uncertain, however, whether the same period applies to “refusal” claims under MWA Subdivision 1(3) or whether such claims are controlled by a shorter two-year period.

Can An Employee’s Bizarre Behavior Support A Determination That He Poses A “Direct Threat” Under the ADA?

Yes – the Sixth Circuit Court of Appeals recently held that a police department made an objectively reasonable decision that an officer posed a direct threat and, therefore, was not qualified to do his job under the Americans with Disabilities Act (ADA), based in part on the officer’s bizarre behavior.

In Michael v. City of Troy Police Department, the plaintiff was a police officer who began acting strangely after undergoing two brain surgeries for a brain tumor.  No. 14-2478 (6th Cir. Dec. 14, 2015).  In 2007, the department learned of the officer’s strange behavior after his wife reported that she found a box of empty steroid vials in his possession, some of which were labeled for veterinary use, and turned them in to the City’s Chief of Police.  When the Chief of Police refused to return the steroid vials to the Plaintiff, the plaintiff began exhibiting a series of aberrant behaviors, including:

  • Secretly recording the Chief of Police;
  • Suing the Chief of Police in small claims court;
  • Attempting to serve the Chief of Police with legal process at his retirement party;
  • Secretly recording his wife during marriage counseling sessions and family gatherings;
  • On the basis of those recordings, asking the City prosecutor to charge his wife with perjury; and
  • Accompanying a cocaine dealer to several drug deals.

Following a third brain surgery in 2009, multiple doctors disagreed about whether the plaintiff was fit to work as a police officer.  Two doctors concluded that it was not safe for him to work as a police officer, but others concluded that it was safe for him to return to work.  The City decided to keep the plaintiff on unpaid leave and not to allow him to return to work.  Thereafter, the plaintiff sued, alleging violations of the ADA.

The Sixth Circuit Court of Appeals decided that the employer’s actions were objectively reasonable and did not violate the ADA.  In reaching this conclusion, the court explained that it was not only reasonable for the employer to rely on the opinions of the two doctors who determined plaintiff was not fit for duty, but it was also reasonable for the employer to base its decision on the plaintiff’s bizarre behavior.  The court concluded that based on the plaintiff’s behavior, it was “eminently reasonable” for the employer to be concerned about whether the plaintiff could safely perform his job duties.  Because the employer’s decision that the employee posed a direct threat to the safety of himself or others was objectively reasonable, the court concluded that the employer did not violate the ADA by failing to return him to work.

Takeaway:  The determination that an employee poses a direct threat to his or her own safety or the safety of others for purposes of the ADA may be based on evidence regarding the employee’s behaviors.

Can Sexually Explicit Text Messages Support a Sexual Harassment Claim If The Employee Does Not Report Them?

No – in a recent case, the Fourth Circuit Court of Appeals held that the Faragher-Ellerth defense barred an employee’s hostile environment claim based on unreported, explicit text messages with her supervisor.

In McKinnish v. Brennan, the employee exchanged sexually explicit text messages, photos, and videos with her supervisor over a ten-month period. No. 14-2092 (4th Cir. Nov. 6, 2015). The employee never reported these exchanges to her employer as alleged harassment. Instead, the employee’s husband reported the messages to the employer after he discovered them. Although the employer immediately terminated the supervisor, the employee later sued and alleged hostile-environment sexual harassment under Title VII.

The court held that the Faragher-Ellerth affirmative defense barred the employee’s harassment claim. The Faragher-Ellerth affirmative defense applies when: (i) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The court decided that the reasonable care element of the Faragher-Ellerth affirmative defense was satisfied because the employer maintained a policy prohibiting sexual harassment and directing employees how to report it. The employer also terminated the supervisor involved in the inappropriate messages after the employee’s husband reported the matter.

The court also concluded that the employee unreasonably failed to report the alleged harassment. The employee argued that she did not want to report the harassment because it made her uncomfortable and she feared negative repercussions at her job. However, the court rejected this argument, explaining that an employee’s “subjective fears of confrontation, unpleasantness or retaliation” do not alleviate the employee’s duty to alert his or her employer to an allegedly hostile environment. Accordingly, the court affirmed dismissal of the plaintiff’s sexual harassment claim.

Takeaway: The Faragher-Ellerth affirmative defense provides a strong reason for employers to adopt reasonable policies and procedures for reporting workplace harassment.

Are Your Employees Looking For New Jobs?

Yes – your employees are probably looking for new jobs. According to a recent article, the number of online job searches spikes in January.

The most popular day for online job searches on is the first Wednesday after New Year’s Day. On that day, there are typically 70% more online job searches than average. But it’s not just that day. Rather, reports that at least half of the most active online job search days occur in January.

Another job search site,, also reports that January is the busiest month for job-searching. recently conducted a survey, which found that 45% of U.S. adults are either actively looking for a new job or plan to do so within the next 12 months.

Employees’ interests in finding new jobs comes at a good time for them, too. In many markets, employers have more openings than they can fill, making candidates with relevant experience a valuable commodity.

Takeaway: Employers should expect that their employees may be looking elsewhere for work and should take steps to retain their most talented employees, if necessary. Conversely, for employers who are struggling to find quality candidates, now may be a good time to renew hiring efforts.

Can An Employee Sue Under The FMLA If The Employee Experiences No Monetary Loss?

No – the Eighth Circuit Court of Appeals recently upheld summary judgment dismissal of an employee’s claim under the Family and Medical Leave Act (FMLA) because the employee did not suffer any monetary loss.

In Hasenwinkel v. Mosaic, the plaintiff was a nurse who alleged that her former employer violated the FMLA in a number of different ways. No. 14-3786 (8th Cir. Dec. 29, 2015). One of the employee’s allegations was that the employer violated the FMLA by issuing a one-month disciplinary suspension. The employer initially suspended the employee without pay because she failed to report unsafe mold in a group home, in violation of the employer’s policies. However, the employer later issued back pay to the employee for the one-month suspension.

In holding that the employee could not recover for the one-month suspension under the FMLA, the court explained that “a plaintiff proceeding under the FMLA must show actual monetary loss to recover.” Because the plaintiff received back pay for the suspension and did not suffer any monetary losses, the court held that her claim failed as a matter of law.

Takeaway: Employees cannot prevail on claims under the FMLA unless they suffer an actual monetary loss.

Minneapolis Workplace Partnership Plans Listening Sessions Regarding Paid Sick Leave Proposal

The Minneapolis Workplace Partnership has scheduled six upcoming “listening sessions” in January of 2016 regarding the Minneapolis City Council’s proposed paid sick leave ordinance.

The Workplace Partnership is a group of 19 individuals selected to represent four constituencies:  (i) employees, especially low-wage earners; (ii) organized labor associations; (iii) employers, including large and small businesses and immigrant-owned businesses; and (iv) business groups and associations.  The Workplace Partnership is tasked with studying the impact of the paid sick leave proposal, engaging with the community about the issue, and providing a report with policy proposals to the Minneapolis City Council by February 24, 2016.

The six upcoming listening sessions include the following:

  • 6, 2016: Latino Employees and Employers – 6 – 7:30 p.m., Mercado Central – Second Floor, 1515 E Lake Street, Minneapolis, MN 55407.
  • 7, 2016: Manufacturing/Construction – 4:30 – 6:30 p.m., Minneapolis Labor Center, Room TBD, 312 Central Avenue, Minneapolis, MN 55414.
  • 14, 2016: Small Businesses – 11:30 a.m. – 1 p.m., Bryant Lake Bowl, 810 West Lake St, Minneapolis, MN 55408.
  • 14, 2016: Downtown-based Businesses – 4:30 – 6:30 p.m., Minneapolis Downtown Council, Skyline Conference Room, 81 South 9th Street, Suite 260, Minneapolis, MN 55402.
  • 17, 2016: Hospitality/Service Industry – 7 – 8:30 p.m., Aster Café – River Room, 125 SE Main Street, Minneapolis, MN 55414.
  • 28, 2016: Public Health/Health Care – 2 – 4 p.m., Allina Commons, Pettingill Hall (lower level), 2925 Chicago Ave S., Minneapolis MN, 55407.

Takeaway:  Employers who feel strongly about the paid sick leave proposal currently under consideration by the Minneapolis City Council should consider attending one or more of the upcoming listening sessions for the Workplace Partnership.

Top Ten Minnesota Employer Posts From 2015

Here are the ten most popular posts published by in 2015:

  1. Significant New Legislation Introduced as Part of “Working Parent Act” in Minnesota
  2. New Paid Leave Legislation Introduced In Minnesota
  3. Employers Get Ready – The Biggest Change to FLSA Overtime Rules in Over a Decade Is About To Occur
  4. Avoiding Toxic Employees May Be More Beneficial Than Hiring Superstars
  5. An Important Change In Minnesota Public Employer Labor Law
  6. Minneapolis City Council Considers Adopting Paid Sick Leave and Fair Scheduling Requirements for Employers
  7. Does a Single Nipple Squeeze Constitute Sexual Harassment?
  8. New Paid Parenting and Caregiver Leave Legislation Introduced In Minnesota
  9. A WARN Act Refresher for Potential Mass Layoffs In North Dakota
  10. Is Employee “Free Speech” A Constitutional Right?

Although it didn’t make the top ten, my favorite post from 2015 was “Why You Wanna Treat Me So Bad? – Prince Gets Sued For Tortious Interference With Contract.

Happy New Year!

Are Strippers Covered By The Fair Labor Standards Act If They Dance to Music Streamed Over the Internet?

Yes – a federal court recently held that the Fair Labor Standards Act (FLSA) applies to strippers who are required to dance to music streamed over the internet.

In Foster v. Gold & Silver Private Club, Inc., a group of exotic dancers sued the Club where they danced and alleged failure to pay the minimum wage under the FLSA. Civ. No. 7:14CV00698 (W.D. Va. Dec. 8, 2015). When they danced, the Club required the dancers to dance to music streamed over the Internet on The Club challenged whether the FLSA applied to the dancers.

There are two types of coverage under the FLSA: (i) individual coverage; and (ii) enterprise coverage. “Individual coverage” applies when the individual performing the work establishes that he or she engages in interstate commerce or in the production of goods for interstate commerce. See 29 U.S.C. § 207(a)(1). “Enterprise coverage” applies when the employer has employees engaged in commerce or in the production of goods for commerce, and is an enterprise whose annual gross volume of sales made or business done is not less than $500,000. See 29 U.S.C. § 203(s)(1)(A).

In Foster, the court held that the dancers at issue were subject to individual coverage under the FLSA because they danced to music that was streamed over the Internet. The court reasoned that the Internet is an instrumentality of interstate commerce, and that because the dancers were required to regularly use the Internet to stream music, they were engaged in interstate commerce and subject to the FLSA.

Takeaway: An employee’s regular use of the Internet, whether for exotic dancing or otherwise, may be sufficient to result in individual coverage under the FLSA.

Avoiding Toxic Employees May Be More Beneficial Than Hiring Superstars

According to a Harvard Business School study, an employer’s decision to avoid employing a toxic employee may prove to be more than twice as profitable as the decision to hire a superstar.

The study analyzed data concerning over 50,000 employees at 11 companies to quantify the costs of employing toxic employees vs. the benefits of employing superstar employees.  The study defined “toxic employee” to include “a worker that engages in behavior that is harmful to an organization, including either its property or people” – for example, behavior that causes customer loss, loss of employee morale, increased turnover, or loss of legitimacy among important external stakeholders.  A “superstar,” on the other hand, was defined as a worker in the top 1% of productivity.

The study concluded that the average cost of employing a “toxic employee” was approximately $12,489 while the benefit of employing a “superstar” was approximately $5,303 on average.  The costs attributed to the toxic employee included the expense of replacing additional workers who quit their employment due to the presence of the toxic employee, but it did not include additional costs, such as litigation, regulatory penalties, or reduced employee morale – so it was likely an underestimate.  As a result, the decision to replace a toxic employee with merely an average employee, as opposed to a superstar, should still be an overall benefit to an employer.

Takeaway:  The decision to avoid hiring or to terminate a toxic employee may be up to twice as beneficial for an employer as hiring a superstar employee.

DOJ Delays Website Accessibility Regulations Under Title III of the ADA Until 2018

In a recent Statement of Regulatory Priorities, the U.S. Department of Justice (DOJ) announced that it does not expect to publish regulations regarding website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (ADA) until 2018. That is only eight years after the DOJ first solicited public comments for potential regulations concerning website accessibility in 2010.

As we’ve previously described, the lack of regulations concerning website accessibility for places of public accommodation leaves many unanswered questions. In the meantime, the DOJ has argued in several recent cases that places of public accommodation should ensure that their websites adhere to the WCAG 2.0, Level AA guidelines developed by the World Wide Web Consortium (W3C). The DOJ also expects to issue regulations addressing website accessibility for state and federal governments under Title II of the ADA sometime in 2016.

Takeaway: The DOJ will likely not issue regulations to establish website accessibility standards for places of public accommodation under Title III of the ADA until sometime in 2018. In the meantime, the WCAG 2.0, Level AA guidelines remain the best resources available for developing an accessible website.

Minnesota Has More Job Openings Than Job Seekers

If you’re an employer struggling to fill open positions with qualified candidates, you’re not alone.

According to the Star Tribune, the number of job openings in Minnesota is now greater than the number of unemployed job seekers.  Specifically, in October of 2015, there were 97,977 job openings, but only 89,793 Minnesotans seeking jobs.  The labor shortage is due to the State’s strong economy and its continuing low overall unemployment rate.  In September of 2015, the unemployment rate in the Twin Cities metropolitan area dropped to 3.1%, its lowest level since 2000.  Statewide, the unemployment rate in Minnesota is 3.7%.  That compares with 4.3% in Wisconsin and 5.0% nationally.

The primary effect of the labor shortage for employers is that it is harder to recruit new employees.  Employers may need to offer greater benefits and incentives to applicants, or they may need to offer relocation to candidates from out-of-state to bring in new talent.  The labor shortage may also affect retention of existing employees, who may become subject to the recruitment efforts of competitors.

Takeaway:  There is no end in sight for the current labor shortage in Minnesota that is making it difficult for employers to recruit and retain qualified employees.