Author Archives: Danielle Fitzsimmons

Are Employers Required to Compensate Employees for On-Call Time?

Depending on the circumstances, on-call time may or may not be compensable under the Fair Labor Standards Act (“FLSA”).  Under both the Federal FLSA and the Minnesota FLSA, time spent on the employer’s premises without complete freedom from all duties is working time that must be counted as time worked for purposes of overtime compensation requirements.  See 29 C.F.R. § 785.17; see also Minn. R. § 5200.0120.  The regulations state that an employee who is required to remain on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call.”  On the other hand, an employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.

When analyzing whether on-call time constitutes compensable “hours worked” under the FLSA, courts generally consider a number of factors, including the following:

  1. Whether the employee is required to remain on the employer’s premises;
  2. The geographical area to which the employee is restricted while on-call;
  3. Whether the employee is required to wear a pager;
  4. The amount of time the employee has to respond to a page and/or call;
  5. The likelihood of being called into work; and
  6. The restrictions placed on the employee’s personal activities while on-call.

Takeaway:  To avoid legal exposure, employers should carefully consider the above factors to determine whether they are required to compensate their employees for on-call time.

Do Employers Need To Provide Earnings Statements to Employees?

Minnesota law states that employers must provide each employee with an earnings statement at the end of each pay period.  Minn. Stat. § 181.032.  The earnings statement must include the following information:

  1. The name of the employee;
  2. The hourly rate of pay (if applicable);
  3. The total number of hours worked by the employee (unless the employee is exempt under the Minnesota Fair Labor Standards Act);
  4. The total amount of gross pay earned by the employee during that period;
  5. A list of deductions made from the employee’s pay;
  6. The net amount of pay after all deductions are made;
  7. The date on which the pay period ends; and
  8. The legal name of the employer and the operating name of the employer if different from the legal name.

The employer may provide the earnings statement either in writing or electronic form.  If the employer chooses to provide the earnings statement in electronic form, the employer must provide the employee with access to an employer-owned computer during the employee’s regular working hours to review and print the earnings statement.  Furthermore, if the employee requests that she receive her earnings statements in written form, the employer must comply with that request on an ongoing basis.

Takeaway:  Employers should make sure that their earnings statements include all of the information required under Minnesota law.

What is the Statute of Limitations under the Minnesota Human Rights Act?

The Minnesota Human Rights Act (“MHRA”) requires that employees (1) bring a civil action, (2) file a charge with a local commission, or (3) file a charge with the commissioner within one year after the discriminatory practice occurred.  Minn. Stat. § 363A.28.  The running of the one-year statute of limitations period is suspended while the parties engage in a dispute resolution process, such as arbitration or mediation.

If an employee chooses to first bring a charge of discrimination with the Minnesota Department of Human Rights (“MDHR”), the employee may subsequently bring a civil action.  When doing so, the civil action must be brought:

  1. Within 45 days after receipt of notice that the commissioner has dismissed a charge;
  2. Within 45 days after receipt of notice that the commissioner has reaffirmed a determination of no probable cause or has decided not to reopen a dismissed case; or
  3. After 45 days from filing of charge, if a hearing has not been held or if the commissioner has not entered into a conciliation agreement that the charging employee signed.  The charging party must also notify the commissioner of an intention to bring a civil action, which must be commenced within 90 days of giving the notice.

See  Minn. Stat. § 363A.33.

Takeaway:  As soon as employers receive an employee’s charge of discrimination or civil action, which alleges discrimination in violation of the MHRA, they should make sure that the employee has met the applicable statute of limitations.  If the employee failed to timely file a charge or initiate a civil action, the employer has a strong defense and may be able to get the claim dismissed.

What Impairments are Likely to Constitute Disabilities under the ADA?

The EEOC’s regulations implementing the ADA Amendments Act of 2008 stress that an individual assessment is necessary in all cases to determine whether an individual is disabled within the meaning of the ADA.  The EEOC does, however, take the position that the individualized assessment of some types of impairments will, in “virtually all cases,” result in a finding that the impairment substantially limits a major life activity.  29 C.F.R. § 1630.2(j)(3).  The EEOC provided the following list of such impairments:

  • Deafness substantially limits hearing.
  • Blindness substantially limits seeing.
  • An intellectual disability (formerly termed mental retardation) substantially limits brain function.
  • Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function.
  • Autism substantially limits brain function.
  • Cancer substantially limits normal cell growth.
  • Cerebral palsy substantially limits brain function.
  • Diabetes substantially limits endocrine function.
  • Epilepsy substantially limits neurological function.
  • Human Immunodeficiency Virus (HIV) infection substantially limits immune function.
  • Multiple sclerosis substantially limits neurological function.
  • Muscular dystrophy substantially limits neurological function.
  • Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.

It is important to note that the EEOC does not assert that the foregoing impairments are per se disabilities.  Rather the EEOC requires an individualized assessment in all cases, even those cases involving one of the above-listed impairments.

Under the ADA, Can Mitigating Measures Be Considered When Determining Whether Someone Has A Disability?

Yes and No.  Mitigating measures reduce the effects of an impairment.  The ADA Amendments Act and the final regulations implementing the Act contain a non-exhaustive list of examples of mitigating measures, which includes medication, medical equipment and devices, prosthetic limbs, low vision devices, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, physical therapy, psychotherapy and behavioral therapy.

The positive effects of mitigating measures in limiting the impact of an impairment  cannot be considered when determining whether someone has a disability.  Only the use of ordinary eyeglasses or contact lenses may be considered.  The ADA Amendments Act holds that the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity absent the mitigating measure.  In most cases, this analysis will require focusing on the impairment’s effect before the individual started using the mitigating measure.  Alternatively, the determination could focus on what would happen if the individual stopped using the mitigating measure.

Despite the rule stated above, the negative effects of a mitigating measure can be taken into account in determining whether an individual is disabled.  Thus, if an individual experiences painful side effects from his or her medication, those side effects can be considered when determining whether that individual has a disability.

Are Oral Complaints Protected Under The FLSA’s Anti-Retaliation Provision?

Yes.  In a decision issued March 22, 2011, the United States Supreme Court held that an oral complaint of an alleged violation of the Fair Labor Standards Act (“FLSA”) is protected conduct under the Act’s anti-retaliation provision in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, 563 U.S. ____ (2011)

The plaintiff in the case, Kevin Kasten, alleged that his employer Saint-Gobain violated the FLSA by placing its timeclocks in a location that prevented workers from receiving credit for the time they spent putting on and taking off their work clothes.  In his anti-retaliation lawsuit, Kasten claimed that he repeatedly made oral reports of the alleged unlawful timeclock location to various Saint-Gobain personnel and that he was discharged because of these oral complaints. 

In reaching its conclusion, the Court considered the basic objectives of the FLSA.  The Court found that for enforcement, the FLSA relies upon information and complaints received from employees seeking to vindicate their rights.  The Court questioned: “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who find it difficult to reduce their complaints to writing, particularly illiterate, less educated or overworked workers?”   The Court also found it persuasive that the Department of Labor has consistently held the view that the words “filed any complaint” include oral complaints. 

Saint-Gobain argued that the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation.  In response to this argument, the Court clarified that “to fall within the scope of the antiretaliation provision, a complaint [whether written or oral] must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

Cat’s Paw Liability

Merriam-Webster’s Dictionary defines “cat’s paw” as “one used by another as a tool.”  In the legal sense, “cat’s paw liability” refers to the situation in which an employer is held liable for discrimination when it relies on a supervisor’s biased report and takes an adverse employment action against an employee.

The United States Supreme court affirmed this theory of liability in Staub v. Proctor Hospital, No. 09-400, 562 U.S. (2011), holding that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable” under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). 

The plaintiff in the case, Vincent Staub, worked as an angiography technician for defendant Proctor Hospital until 2004, when he was terminated.  While employed by Proctor, Staub was a member of the United States Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks a year.  Both Janice Mulally, Staub’s immediate supervisor, and Michael Korenchuk, Mulally’s supervisor, were hostile to Staub’s military obligations.  In January 2004, Mulally issued Staub a “Corrective Action” disciplinary warning without justification.  Then in April 2004, Korenchuk informed Proctor’s Vice President of Human Resources, Linda Buck, that Staub had violated the Corrective Action, which again was false.  Buck relied on Korenchuk’s accusation and fired Staub.

Staub sued Proctor under USERRA, claiming that his discharge was motivated by hostility to his obligations as a military reservist.  He did not contend that Buck had any such hostility, but instead that Mulally and Korenchuk did, and that their actions influenced Buck’s ultimate decision.

Proctor argued that an employer cannot be held liable for discrimination unless the ultimate decisionmaker is motivated by discriminatory animus.  The Court rejected this argument and reasoned that so long as the earlier agent or supervisor intended, for discriminatory reasons, that the adverse action occur, the wrongful intent required for liability exists.