It’s not very often an appellate court takes away a jury verdict because of the trial court’s discretionary ruling to extend a deadline. The case is Petrone v. Werner Enterprises (8th Cir. 10/10/2019).    Student drivers for Werner Enterprises brought a FLSA collective action for alleged unpaid wages earned during an eight weeks student-driver training

As employment cases go, the 2018–2019 adjudicative term (covered in Part I here) may go down as a year of missed chances. In Hawkins v. Grinnell Regional Medical Center, Patrick Smith wrote in June, the Justices failed to address an emotional-distress award’s excessiveness and the permissibility of a “golden rule” argument used in

Arbitration continues to be popular with many employers.   Two significant factors driving employers to arbitration, and away from state and federal courts, are the potential for lower defense costs and reduced risk of runaway jury awards that seem to be more common than ever before.    Many lawyers think the benefits of arbitration are overstated and

My Fredrikson & Byron colleague Brandon Underwood is the author of today’s guest-post:

On May 31, 2019, in Webb v. Farmers of North America, Inc. (No. 17-3456), the Eighth Circuit dismissed an employer’s appeal challenging how the lower court had read an arbitration agreement.  The employer, citing the agreement with its employee, had actually persuaded

Sometimes employers become conditioned to believing that an employee who has recently used FMLA leave is effectively immune from discipline or discharge.   It is no doubt true this employee presents a heightened litigation risk, but when the adverse action is handled properly the employer can mitigate that risk or at least make the potential claim

How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).


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Although many employers use progressive discipline policies, I am typically not a big fan.   In theory progressive discipline seems like a good idea:  it allows an employee to learn from their mistakes.  It puts the employee on notice that further discipline is going to have more serious consequences.    It is difficult for an employee who has gone through the steps to claim surprise when the termination arrives.

On the other hand, progressive discipline limits an employer’s flexibility.   Sometimes it is clear an employee isn’t working out, but the company feels bound to go through the steps before terminating.   In other cases, the circumstances may warrant giving an employee more chances that the policy allows.  In those situations, an employee may be terminated simply because they are on the last step, even though the company would rather keep the employee.


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It is a truism that employers prefer to win discrimination cases on summary judgment rather than go to trial.    In most cases, winning on summary judgment means convincing the judge there is not enough evidence that would allow the plaintiff to prove “pretext.”   (Pretext: “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Merriam-Webster Online Dictionary).    With pretext, the plaintiff goes to trial; without pretext, the plaintiff goes home and the employer wins.

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Good news for employers—you have due process rights too. So ruled the court in Business Communications, Inc. v. U.S. Dept. of Education  (8th Cir. 12/2/13). 

The Federal Government awarded Business Communications, Inc. (BCI) contracts to install cables in two school districts. The money for the project was provided by the American Recovery and Reinvestment Act (“ARRA” a/k/a