Labor, Employment and Benefits Law Update, August 2009




Minnesota Supreme Court Confirms Narrow Confines of Whistleblower Protections

By Julia H. Halbach


A case recently decided by the Minnesota Supreme Court confirms the narrow scope of protection under Minnesota’s Whistleblower Statute, Minn. Stat. § 181.932.  In Kratzer v. Welsh Companies, LLC, No. A06-2284 (Minn. 2009), the court concluded that employees are not protected under the Whistleblower Statute unless they report a violation of an actual statute or rule, as opposed to what they believe is a violation of a statute or rule.  In making this decision, the court confirmed its previous decisions that a report regarding a violation of a suspected law that is not actually such a violation does not constitute protected conduct under the statute.  Continue 

D.C. Circuit Rules Employer Unlawfully Disciplined Employee for Union-Related Emails
By Bruce J. Douglas & Laura W. Bartlow*

In July, the United States Court of Appeals for the District of Columbia Circuit unanimously held in Guard Publishing Company d/b/a The Register-Guard v. National Labor Relations Board, No. 07-1528, (D.C. Cir. July 7, 2009) that a publishing company unlawfully disciplined employees for sending union-related emails through the company’s email system.  The decision overturned part of a 2007 decision of the National Labor Relation Board (Board) in The Guard Publishing Company, d/b/a/ The Register Guard, 351 NLRB No. 70 (December 16, 2007).  Continue

Update on The Employee Free Choice Act (“EFCA”)
By Bruce J. Douglas and James T. Graves*

In a previous alert, we reported on the Employee Free Choice Act (EFCA) (see The Law & Employment Law Update, February, 2009).  This update highlights some recent developments impacting the EFCA.

On March 10, Senator Tom Harkin (Ia.) re-introduced the Employee Free Choice Act into the 111th Congress as S. 560. It and its companion House bill, H.R. 1409, were both read into the record and referred to committee.  

Rights Of Employees Requiring Military Leave: An Update To The Uniformed Services Employment And Reemployment Rights Act
By Bruce J. Douglas, Chris M. Heffelbower and Breanna L. Christensen*

In light of the United States’ ongoing military commitments in Iraq and Afghanistan, employers are likely have an employee who is planning to enlist or a returning member of the uniformed services.  Employers need to be aware of the strict guidelines the law imposes for an employer whose employees take military leaves of absence.  Continue

Partial Termination of Retirement Plans


Many employers are aware that when they fully terminate a retirement plan, all participants become 100% vested in their account balances.  However, the “partial termination” provision is less well-known but may be of greater relevance to many companies in today’s troubled economy.    Continue

401(k) Fair Disclosure and Pension Security Act


The House Education and Labor Committee has passed a bill that addresses three distinct issues facing retirement plans: the disclosure of fees charged to participants in 401(k) plans; how investment advice can be provided to plan participants; and the funding challenges for defined benefit plans resulting from the Pension Protection Act.  

Former Employee Can Pursue Fiduciary Suit


In a recent decision from the Ninth Circuit, a former employee was found to have legal standing to bring a suit against his former employer’s retirement plan fiduciaries even though he had already withdrawn all his assets from the plan.  The main issue in the case, Harris v Amgen, Inc., is whether the company, as a named fiduciary to the plan, had breached its fiduciary duties by permitting the plan to hold Amgen stock while knowing that the stock was artificially inflated due to improper off-label drug marketing and sales.   This decision does not address that issue but only whether Harris, the former employee, was entitled to bring this suit given that he had voluntarily withdrawn all his retirement plan assets.  Continue

Federal Minimum Wage Increase

By Chris M. Heffelbower


On July 24, 2009, the federal minimum wage required by the Fair Labor Standards Act increased to $7.25 per hour for covered non-exempt employees.  The applicable minimum wage in some states is greater than $7.25 per hour.  Generally, the employees who reside in those states must be paid the higher rate.  For most employers in Minnesota, the employers must pay their employees the federal minimum wage rate of $7.25 per hour, even though Minnesota’s minimum wage rate is lower.  Continue

Our Labor & Employment Practice:


The Larkin Hoffman employment law team identifies and resolves workplace issues in this rapidly evolving and highly regulated area.  Our attorneys provide counsel and advice to employers.  We represent employers in state and federal courts and administrative agencies including the EEOC, MHRA, NLRB, OSHA and DOL.

Our Benefits Practice:


Our benefit attorneys provide counsel in the area of employee benefits business planning, including pension and profit sharing plans, nonqualified deferred compensation plans, incentive stock plans, executive compensation and fringe benefits.  We work with employers proactively to avoid problems as well as to resolve issues that do arise in the complex arena of employee benefits.  When needed, we represent employers in court as well as before the IRS and DOL.

Contact our Labor & Employment Attorneys: 
Dayle Nolan                     
Email 952.896.3275           
Christopher J. Harristhal  
Email 952.896.3312
Bruce J. Douglas  
Email 952.896.1569
Daniel J. Ballintine  
Email 952.896.3288
Chris M. Heffelbower    
Email 952.896.1543
Sejal Desai Winkelman     
Email 952.896.3325
Carrie L. Zochert    
Email 952.896.3353
Julia H. Halbach    
Email 952.896.3264

L. Kathleen Harrell-Latham 

Email 952.896.1544

Contact our Benefits Attorneys:


Email 952.896.3355


Email 952.896.3270


Email 952.896.3275


Bruce J. Douglas

Email 952.896.


Email 952.896.3225


Chris M. Heffelbower

Email 952.896.1543          Attorneys             Firm News             Events


This alert is provided as a service to our clients and firm associates.  While the information provided in this publication is believed to be accurate, it is general in nature and should not be construed as legal advice.