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The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- WORKING TEENS
- EMPLOYEE TESTING FOR A SERIOUS CONDITION
- INTERFERENCE WITH HEALTH BENEFITS
- EMPLOYEE ALLOWED TO SUE EMPLOYER UNDER ERISA FOR 401(K) LOSSES
- RELIGIOUS ACCOMMODATION REQUIRED
- TIP OF THE MONTH
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WORKING TEENS
As we get to summer employment time, it is important to be reminded that federal law restricts the terms of employment of persons under 16 to non-hazardous and non-mining jobs. This law does not require any minimum number of employees to be covered, but covers all employers engaged in interstate commerce. During the period from June 1 – Labor Day, they may work hours from 7:00 a.m. – 9:00 p.m., but may not work more than 8 hours a day or more than 40 hours a week. Persons 16-17 years old may perform any non-hazardous job for unlimited hours. After Labor Day, employment of persons 14-15 years old is much more limited. The U.S. Department of Labor has included a helpful self assessment tool on its website, www.youthrules.dol.gov
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EMPLOYEE TESTING FOR A SERIOUS CONDITION
A recent case has made it clear that an employee may take leave in order to properly undertake testing that could determine whether he or she has a serious medical condition and qualify for family medical leave. At issue was the case of a limousine driver who had previously taken an FMLA leave for heart surgery. About a year later he was asked to wear a heart monitor to determine whether further surgery was necessary. He told his employer that he might need to take an additional six weeks of leave, and he was fired a week later for alleged performance issues. The Court concluded that as soon as the employee had notified the employer of the potential need for medical leave he was protected from termination during the testing period, suggesting that the performance issue claim was a sham. Sarnowski v. Air Brook Limousine, (3rd Cir. 2007).
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INTERFERENCE WITH HEALTH BENEFITS
This 8th Circuit (Minnesota) case is a good reminder that employee termination can be in violation of ERISA if the employee can show that the termination occurred to prevent him or her from receiving health care insurance benefits. At issue was an employee who needed shoulder surgery and had not been a particularly good employee. An employer may be able to avoid an initial presumption of discrimination by giving good reasons for the termination, shifting the burden of proof back to the employee. However, an employee also has a right to show that such reason was a pretext. An employee may prove pretext by demonstrating that the employer's proffered reason has no basis in fact. In this case, the employer had provided multiple reasons for the termination which helped the Court determine that the employer's justification was a pretext for interfering with insurance benefits, as well as evidence that other employees had been treated more leniently and the manner of termination was inconsistent with prior company policies. Fitzgerald v. Action, Inc., (8th Cir. 2008).
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EMPLOYEE ALLOWED TO SUE EMPLOYER UNDER ERISA FOR 401(K) LOSSES
The U.S. Supreme Court recently ruled unanimously that an individual may recover damages from plan sponsors for a breach of fiduciary responsibility resulting in losses to that particular individual's 401(k) account. The employee claimed the employer did not follow investment instructions provided. The employer argued that the applicable statutory provision protected the entire plan but did not give rights to individual beneficiaries whose accounts had suffered losses. This position had been adopted by lower courts. The U.S. Supreme Court determined that individual participants have a right to sue for losses. LaRue v. DeWolff, Boberg and Associates, Inc., et al. (U.S. Sup. Ct., 2008).
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RELIGIOUS ACCOMMODATION REQUIRED
UPS again made news in the 8th Circuit in a case involving an employee who was a Seventh-day Adventist church member. The employee recognized that when it came to the peak season in December he would need some relief as his religion prohibited him from working from sundown on Friday to sundown on Saturday. In general, the employer looked at various accommodations and suggested a job shift, but none of these were thought to be available or legal under the collective bargaining agreement. The employee's supervisor tried to lighten his load as the December holiday rush occurred, but ultimately the employee was terminated, as he could not complete all of his deliveries on a Friday. The 8th Circuit has recently upheld awards in excess of $100,000 in compensatory damages, $130,000 in attorneys' fees and costs, injunctive relief to accommodate the employee and punitive damages in excess of $200,000. The 8th Circuit affirmed everything, except it reversed the award of punitive damages and the grant of overly broad injunctive relief. In regard to punitive damages, the Court suggested this was similar to a case in which the Court determined that punitive damages were inappropriate when an employer acted in good faith to protect itself against employee absences. The actions involving termination were nothing more than a negligent violation of Title XII, religious discrimination. UPS's action was not taken with malice or reckless indifference to the employee's accommodation request. Sturgill v. UPS, (8th Cir. 2007).
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TIP OF THE MONTH: In reviewing your sexual harassment policy, please consider whether you have provided the employee with various avenues for filing a complaint. Various avenues are appropriate, as some persons may be hesitant to file a complaint, if the designated person, for example, is the alleged claimed harasser, perceived to be an ally of the alleged harasser, or the employee would rather speak to a person of the same gender.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employment lawyers include Tom Torgerson, Rob Merritt, Scott Witty and Richard Burns.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2008 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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