Category Archives: Workers’ Compensation

Department of Labor Proposes New Salary Requirement for Exempt Employees

On March 7, 2019, the Department of Labor (DOL) announced a proposed rule to raise salary requirements for overtime exemptions for executive, administrative, and professional employees. Currently, the salary threshold for exempt employees is $455 per week, or $23,660 annually. Under the Fair Labor Standards Act (FLSA), employees below this salary threshold must be paid overtime for hours worked in excess of 40 hours per week.

Under the proposed rule, the salary threshold for the overtime exemption would raise to $679 per week, or $35,308 annually. In order to classify employees as exempt from overtime requirements, employers would need to meet this new requirement, in addition to the job duty requirements. This salary proposal is approximately $12,000 lower than the DOL’s proposed change in 2016.

The proposal also increases the total annual compensation for exempt “highly compensated employees” from the current annual salary of $100,000 to $147,414.

The DOL submitted the proposed rule to the Office of the Federal Register for public comment. If accepted, the DOL estimates that the new rule will take effect in January 2020.

More information regarding the proposed rule is available at In addition, the public is encouraged to submit comments about the proposal at, in the rulemaking docket RIN 1235-AA20. The public has 60 days to comment on the proposed rule, beginning on the date of publication.

Takeaway: Employers may soon have to comply with new salary requirements for FLSA overtime exemptions. It is never too early to review current overtime policies and employee classifications to identify changes that may be needed when the proposed rule goes into effect.

OMB Stays Use of New EEO-1 Form

In 2016, the Equal Employment Opportunity Commission (EEOC) proposed and then approved a new EEO-1 Form for the collection of certain workforce data. In particular, the new form would require all employers with 100 or more employees, and federal contractors with 50 or more employees, to now annually report certain pay and hours worked data, in addition to data regarding workforce ethnicity, race, and gender. This new form was set to become effective with a March 31, 2018, filing date deadline.

The required submission of compensation data was received by employers with expected controversy. In addition to the increased administrative burden, employers recognized that the compensation data could be used by the EEOC to charge and investigate allegations of discriminatory practices.

Well, those employer concerns are now tabled. On August 29, 2017, the Office of Management and Budget (OMB), issued a Memorandum to the EEOC Acting Chair, Victoria Lipnic, stating that OMB is “initiating a review and immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016.” In doing so, OMB noted that the EEOC had released data file specifications for employers to use in submitting the new data, but these specifications were not part of the prior public comment process and were not accounted for in previous burden estimates.  Further, the OMB Memorandum stated:

OMB has also decided to stay immediately the effectiveness of the revised aspects of   the EEO-1 form for good cause, as we believe that continued collection of this information is contrary to the standards of the PRA (Paperwork Reduction Act).  Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

So for now employers should continue to use the prior EEO-1 form, rather than the new form. The March 31, 2018, filing deadline remains the same.

Takeaway: OMB has stayed indefinitely the EEOC’s use of its new EEO-1 form. Employers should instead continue to submit data under the prior form.

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.

Do Workers’ Compensation Laws Apply If An Employee is Injured While Commuting To or From Work?

Generally no, but there are limited circumstances where an injury that occurs while an employee is commuting may be covered by workers’ compensation laws.

In Minnesota, the general rule is that workers’ compensation applies to injuries that occur to an employee “while engaged in, on, or about the premises where the employee’s services require the employee’s presence as a part of that service at the time of the injury and during the hours of that service.”  Minn. Stat. § 176.011, subd. 16.

The exceptions that may cause an injury that occurs while the employee is commuting to be covered by workers’ compensation include:

  • When the employer regularly furnishes transportation to employees to and from the place of employment, and the employee is injured while being so transported;
  • When the employee is traveling between two portions of his or her work premises; or
  • If a portion of the employee’s work is performed at home, situations may arise in which an injury that occurs during the trip between the employee’s home and his employer’s premises may fall within the scope of workers’ compensation coverage.

See Kahn v. State, 289 N.W.2d 737, 742 (Minn. 1980).

Takeaway:  In most cases, if an employee is injured while commuting to or from work, the injury will not be covered by workers’ compensation laws.  However, if any of the exceptions listed above apply, the injury may be subject to workers’ compensation laws.

Beware the Danger of Firing an Employee for an Allegedly False Workers Compensation Claim

Many employers have filed a workers compensation claim on behalf of an employee, but nonetheless doubted whether the employee was actually injured or if a workplace incident even happened.  Occasionally those suspicions are confirmed when the insurer denies the employee’s claim.  As a result, the employer may then feel justified in disciplining or firing the employee for filing a false claim.

Minnesota courts have recognized that an employee may be discharged for dishonest behavior, including filing a false workers compensation claim.  See Randall v. N. Milk Prods., Inc., 519 N.W.2d 456, 459-60 (Minn. Ct. App. 1994) (noting that dishonesty is not a legitimate basis for termination, however, if it is a pretext for a retaliatory discharge).  At the same time, the Minnesota Workers Compensation law prohibits an employer from discharging an employee in retaliation for seeking workers compensation benefits.  Minn. Stat. § 176.82, subd. 1.

The tension between these two principles surfaced in a recent case decided by the Minnesota federal district court.  Schaefer v. BioLife Plasma LLC, Civil No. 11-3468 (D. Minn. Sept. 18, 2013).  The matter arose when the employee allegedly slipped during the winter in the company parking lot.  She claimed that she had slipped during both of her afternoon breaks.  After the workers compensation claim was filed, the employer viewed videotape of the parking lot and concluded no slip had occurred.  Based in part on this information, the insurer denied the claim.  The employee was later fired for filing a false claim.

The employee sued for retaliatory discharge and the employer moved for summary judgment.  The Schaefer court denied the employer’s motion, concluding that the employee had presented evidence that the employer’s belief in a false report was not reasonable because the company’s investigation was noticeably incomplete.  For example, video footage from the first break was not retained and footage from the second break was apparently of poor quality.  It was also uncertain whether the slip incidents occurred outside of camera range.  The court also noted that the employer had not contacted the employee’s doctor to determine whether her injuries were consistent with a slip incident.

The court expressly noted “its concern with employers using falsification of workers’ compensation claims – or the injuries underlying them – as a grounds for termination” and further stated that “[p]ermitting termination of an employee on the grounds that a flawed investigation demonstrates a reasonable belief of claim falsification provides an employer with the incentive to do a poor investigation.”

Takeaway:  While employers should certainly investigate any employee allegation of workplace injury, in doing so it should make sure any such investigation is complete and not results oriented.  Employers should also carefully consider any discharge decision resulting from an allegedly false claim made by the employee.

Are Out-of-State Employees Covered by Minnesota’s Workers’ Compensation Laws?

Employees of Minnesota companies who are injured outside the state may be entitled to Minnesota workers’ compensation benefits under certain circumstances.  Employees of out-of-state companies who are injured while working in Minnesota may also be covered by Minnesota workers’ compensation laws.  When injuries happen, it is important for employers to know which laws apply.

Employees with out-of-state connections may be entitled to Minnesota workers’ compensation benefits in three scenarios:

  • Extraterritorial Application:  If an employee who regularly performs the primary duties of his or her employment within Minnesota receives an injury while outside of the state in the employ of the same employer, Minnesota’s workers’ compensation laws apply.  This does not apply if the transfer outside of the state is permanent.
  • Temporary Out-of-State Employment:  If an employee hired in Minnesota by a Minnesota employer receives an injury while temporarily employed outside of the state, Minnesota’s workers’ compensation laws apply.  To determine whether an employer is a “Minnesota employer,” courts consider whether the employer has officers, operations, or facilities in Minnesota.  The employer does not need to be incorporated in Minnesota to be a “Minnesota employer.”
  • Out-of-State Employees:  An employee who regularly performs work outside of Minnesota, but is injured within Minnesota, may be covered by Minnesota’s workers’ compensation laws if the employee chooses to forgo any workers’ compensation claims that the employee have the right to pursue in a different state.

See Minn. Stat. § 176.041, Subd. 2–4.

According to the Minnesota Department of Labor and Industry, determining whether someone is “temporarily employed outside of Minnesota” requires looking at the length of employment and whether the employee is expected to return to Minnesota.  The Minnesota Supreme Court has held that, for the purposes of this law, “temporarily” means “not of long duration, not permanent, but for a short time.”  The court has also said that if an employee goes to a different state regularly, he or she could still be “temporarily” outside of Minnesota if he or she was hired in the state by a Minnesota employer.  Fischer v. Malleable Iron Range Co., 225 N.W.2d 542 (Minn. 1975).

The State of Minnesota has a guide concerning extra-territorial application of Minnesota’s workers’ compensation laws, which is available here.

Takeaway:  Minnesota’s workers’ compensation laws may extend beyond the borders of the state under certain circumstances.  Minnesota employers who send employees on out-of-state assignments and out-of-state employers who send employees on assignments to Minnesota should be familiar with the extra-territorial application of Minnesota’s workers’ compensation laws.