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Notes & Trends - Bench & Bar May/June 2017


Unfair labor practice; employer’s challenge rejected. A determination by the National Labor Relations Board (NLRB) that a Minnesota-based employer committed an unfair labor practice by refusing to bargain with the relevant union was upheld. The 8th Circuit Court of Appeals denied the employer’s challenge because it did not show that the union violated its rules and regulations by refusing to dismiss a second petition seeking representational status, nor that the union improperly re-litigated issues or that the approved bargaining unit was inappropriate. Cargill, Inc., v. NLRB, 851 F.3d 841 (8th Cir. 3/24/2017). 

Labor law; union vote upheld. The NLRB properly certified a labor union after upholding a challenge to the potentially decisive vote by an individual because he was a supervisor. The 8th Circuit Court of Appeals affirmed the determination by the Board that the ballot cast against the union by the individual was invalid because there was substantial evidence that the individual had authority to recommend hiring and exercise independent judgment as well as other indicia that he had supervisorial authority. NLRB v. Mo. Red Quarries, Inc., 2017 U.S. App. LEXIS 5956 (U.S. App. 4/6/2017) (unpublished). 

Labor law; untimely challenge. An employer seeking to challenge a ruling of the NLRB failed on jurisdictional grounds. The 8th Circuit held that the employer did not raise the claimed error in the Board’s determination before the agency or contest an administrative law judge’s determination, which rendered the court without jurisdiction. NLRB v. Chipotle Services, LLC, 1849 F.3d 1161 (8th Cir. 3/6/2017). 

Labor law; challenge rejected. A challenge by a discharged railroad worker to a determination by the Department of Labor that he was the subject of improper retaliation was rejected. The 8th Circuit held that there was substantial evidence supporting the determination by the administrative law judge that the worker’s protected acts in reporting safety violations did not constitute a “contributing factor” to his termination. Mercier v. U.S. Dept. of Labor, 850 F.3d 382 (8th Cir. 5/2/2017). 

Employment termination; remand for individual liability of sheriff. A sheriff who was sued for wrongful termination of an employee because he supported the sheriff’s opponent in a recent election was partially affirmed and partially remanded. The 8th Circuit held that the dismissal of the lawsuit against the sheriff in his of cial capacity was proper because he was not an of cial “policy maker” in the termination decision, but the case was remanded to determine whether he had immunity in his individual capacity. Thompson v. Shock, 2017 U.S. App. LEXIS 5361 (U.S. App. 3/28/2017) (unpublished).

Age discrimination; dispute resolution process extends limitations period. The participation by an employer in an internal dispute resolution process by the City of Minneapolis extends the one-year statute of limitations under the Minnesota Hunan Rights Act. Affirming a decision of the court of appeals, which reversed a lower court ruling, the Minnesota Supreme Court held that participation in the process suspended the limitation period for the employee’s age discrimination claim under the provision of the statute Minn. Stat. §363A.28, subd. 3, which tolled the statute of limitations when parties are “voluntarily engaged in the dispute resolution process” concerning a discrimination claim. Peterson v. City of Minneapolis, 2017 Minn. App. LEXIS 195 (App. 4/12/2017) (unpublished).

Employee indemnification; no recoupment allowedA public sector employer who was required to indemnify an employee for alleged negligence claims under Minn. Stat. §181.970 is not entitled to bring a claim against the employee for negligence to recoup payments made by the employer to a third party. The court held that the statute bars the employer from seeking to recover from the negligent employee any payments made due to the defective performance by the employee. First Class Valet Services, LLC v. Gleason, 2017 Minn. App. LEXIS 537 (App. 3/20/2017) (unpublished).

Unemployment compensation; not “available” for employment. An employee who did not make herself available for suitable employment by being only willing to work at jobs within a 10 mile radius of her home was denied unemployment compensation bene ts. The statutory requirement that the employee be “available” in seeking “suitable” work under Minn. Stat. §268.095, subd. 18 barred her claim. Flanagan v. Dept. of Empl. & Econ. Dev., 2017 Minn. App. LEXIS 213 (App. 3/6/2017) (unpublished). 

Unemployment compensation; employee-employer relationship established. A sales representative was entitled to unemployment benefits because he was employee, not an independent contractor, while working with an auto parts distribution company. Affirming a determination of an unemployment law judge (ULJ), the court of appeals held that most of the factors, except the furnishing of materials and tools, weighed against an independent contractor relationship and, thus, entitled to the employee to unemployment benefits. Stevens v. Smart Parts Auto, Inc., 2017 Minn. App. LEXIS 265 (App. 3/27/2017) (unpublished). 

Unemployment compensation; freelance work bars benefits. An employee, who did freelance work on company time and using company equipment, was denied unemployment compensation benefits. Affirming a ULJ decision, the appellate court held that the employee’s outside work on company time and with company facilities constituted disqualifying “misconduct.” Van Hecke v. Annandale Advocate, Inc. 2017 Minn. App. LEXIS 261 (App. 3/27/2017) (unpublished). 

Unemployment compensation; no benefits for quitting due to lack of time off. An employee who quit his job because he was not given 30 days time off as he initially requested from his employer was denied unemployment compensation benefits. The appellate court held that the ULJ properly determined that the employee accepted an offer of time off without referencing any requirement that the employer provide 30 days. Simon v. Launch Tech. Workforce Solutions, LLC, 2017 Minn. App. LEXIS 207 (App. 3/6/2017) (unpublished).


Unemployment compensation changes. Several changes have been made by the Legislature and approved by Gov. Dayton to the unemployment compensation law. They include classifying employees for religious-related elementary and secondary schools as ineligible for benefits under Minn. Stat. §268.35, subd. 20(6); the term “good cause” for failing to participate in a re-employment assistance program is denied as a reason that “would have prevented a reasonable person acting with due diligence from participating.” 

A similar “good cause” standard of “a reasonable person acting with due diligence” also has been added to the grounds for obtaining reconsideration of an administrative hearing ruling seeking to introduce new post-hearing evidence. 

Originally published in the May/June 2017 issue of Bench & Bar of Minnesota