Halunen & Associates

By Hillary Windrow

Employees allege they were not paid to change into gear

Approximately 142 workers at Kerry Ingredients will be receiving letters about a lawsuit against the company.

A federal court has paved the way for more than 800 current and former workers at Kerry Specialty Ingredients plants in Wisconsin, Minnesota, Iowa and Ohio to join a lawsuit for unpaid time on the job.

The lawsuit, filed in federal court in Minnesota, alleges Kerry did not pay its workers for time spent putting on and taking off protective gear before and after shifts.

The court ordered that the lawsuit proceed as a class action suit and authorized notices to be mailed to Kerry employees who worked in production, maintenance, and sanitation jobs at any time on or after Feb. 1, 2003 in Albert Lea, Minn, Covington, Ohio, Fredrecksburg, Iowa, and Beloit, Jackson, Owen and Vesper, Wis.

The notices mailed otu Tuesday require the workers to fill out and return a “consent form” by Oct. 29 if they want to join the lawsuit as plaintiffs, according to Bill Gengler, of the Minneapolis law firm of Lockridge Girndal Nauen P.L.L.P.

Gengler claims Kerry’s practices violate the Fair Labor Standards Act.

“The time it takes to put on and take off protective gear adds up. Over a couple of years, it could be worth several thousand dollars to a Kerry worker,” Gengler said.

Senior Counsel for Kerry Americas Suzanne Kiwaiko said Kerry is aware of the lawsuit and denies that it has violated the law in any way.

“…This lawsuit does not pertain to allegations that Kerry has improperly denied pay for time spend putting on and taking off protective equipment. Kerry vigorously contends that it is not obligated to pay for uniform changing time at the union plants because nonpayment is past custom and practice of Kerry and the unions that, under the law, exempts Kerry from having to pay for this time, and at the nonunion plants, time spent changing into and out of uniforms is so inconsequential that under the law, Kerry is not obligated to count it as working time,” Kiwaiko said.

Plaintiffs seek to recover all compensation for donning and doffing including overtime pay. In addition, plaintiffs are seeking double damages, interest, costs of the suit and attorneys’ fees.

Gengler said the case will probably be ready for trial in early September.

Click here to see our page on Kerry Foods.

From: Minnesota Lawyer (www.minnlawyer.com)

By Barbara L. Jones

A Marine’s claim that he was fired for asserting his rights to miss work for medical treatment for illnesses incurred at least in part while on active duty in Iraq may go forward, a federal judge has ruled.

The case is one of a very few brought to date under the Uniformed Services Employment and Reemployment Act (USERRA) of 1994, which prohibits employment discrimination on the basis of military service, said the plaintiff’s attorney, Clayton D. Halunen of Minneapolis.

“The guy is a hero,” said Halunen. “Had the law not protected him then there would be no justice.” Halunen expects cases like this to increase as more and more service members return from Iraq and assert their rights under USERRA.

“We can’t wait to go to trial. This has to go forward for the benefit of the service,” said Halunen. Since the law is so seldom litigated, there are many questions about it, he said.

Minneapolis attorney Justin Cummins, who is vice-chair of the MSBA Labor and Employment Law section, agreed that USERRA claims are likely to become more prevalent, and advised any lawyer who represents a service member to consider the law.

“Talk about supporting our troops, this is the best way to support our troops. They don’t always get support from their employers when they return home,” observed Cummings.

The attorney for the employer, David Goldstein of Minneapolis, said that his client has acted in good faith and that there is genuine confusion about what USERRA means. “USERRA is a complicated statute and employers really struggle with it. Everybody wants to do the right thing but it’s complicated. This case is important because it clarifies what active duty means under the statute,” he said.

The plaintiff, Timothy Moore, served in Iraq as a weapons platoon sergeant and returned from Iraq to Eau Claire, Wis., in March 2005. Subsequent to his return, he was diagnosed with inflammatory bowel disease (Crohn’s/ulcerative colitis) and liver disease. These conditions were determined to be service related, and he was granted compensation benefits from the military.

Starting in July 2005, Moore worked for the defendant, Epperson Underwriting Company, as a loss prevention representative in territory that included Minnesota. He told the company he would have to report for reserve duty when necessary.

Moore took time off in late September for surgery, telling the company it was for a service-related medical condition. He missed more time in October and in November.

In a conversation with his supervisor, Moore said that he believed that the company violated USERRA when it deducted from his vacation time to cover his medical absences. He offered to have a represntative from the Guard and Reserve’s Employer Support explain the law’s requirementsto his supervisor.

Moore had another medical prcedure at the end of November. After he returned to work, he was terminated on Dec. 6.

Moore sued the company, alleging that it has discriminated against him in violation of USERRA by not letting him have time off work to get treatment for his service-related medical condition.

U.S. District Court Judge Ann Montgomery ruled against Moore on that claim, finding USERRA did not apply. While USERRA protects individuals against being discriminated against for performing military duties, going to treatment for service-related medical conditions did not constitute performance of military duties, the judge reasoned.

Halunen took exception to this conclusion, nothing that Moore was still a member of the National Guard when he was getting his medical care.

“It defeats the purpose of the law to say that the medical treatment must be on active duty,” he said.

But Montgomery did allow Moore’s USERRA-based retaliation claim to go forward. (Moore argued that the company had taken adverse employment action against him because he had made a report about the company’s conduct to the Guard.)

A retaliation claim requires a plaintiff to present sufficient evidence that his USERRA report was a substantial factor in the employer’s decision to invest him and ultimately fire him, Montgomery noted. The judge found that a genuine issue of material fact existed on whether the employer was motivated by the USERRA report to fire Moore.

This close timing of events, along with the allegation that his supervisor told Moore not to contact the Guard about any problems, raised an inference that the USERRA report was a motivating factor, said Montgomery.

Montgomery also allowed claims under the Minnesota Human Rights Act to go forward.

The 25-page decision is Moore v. Epperson Underwriting Company.

Halunen & Associates is moving foward on our class action suit against Kerry Foods. Now, you can get involved. Our attorneys have assembled the class notification and a consent form that will provide you information about the law suit as well as allow you can get involved. Click here to view the forms and become a part of this important legal action in Minnesota.

Original Article

By Brian Davidson

ROCHESTER, Minn. – A lesbian couple who share a last name and are raising a daughter together have sued the Rochester Athletic Club and its owner for denying them a family membership because they are not legally married.

While state law prohibits same-sex couples from marrying in Minnesota, Amy and Sarah Monson exchanged vows in a formal commitment ceremony in 2002. They have also merged their finances and listed each other as beneficiaries in their estate plans along with their 11-year-old daughter.

But when the Monsons tried to purchase a family membership at the RAC in March 2006, the club said they were not eligible for the discounted rate – which would have saved them about $40 a month – because they are not married under the law.

The club invited one of the Monsons and their daughter to join at the family rate, offering the other a more expensive individual membership, according to defense attorney Gregory Griffith. The Monsons declined, deciding instead to file a lawsuit against the club and its owner, John Remick, for discrimination based on sexual orientation.

“This is not about marriage,” said the Monson’s attorney, Joni Thome. “It’s about sexual orientation. The legal relationship is not what matters. What matters is what people acknowledge themselves to be. ”

Defense attorney Gregory Griffith disagrees, arguing that the legal status of the Monson’s relationship is a pivotal factor in the case.

“If the state would modify some of the legal standards [marriage laws], that would certainly clarify this situation,” he said. “But as we stand, we don’t believe Minnesota law requires the RAC to provide the Monsons what they’re seeking.”

Griffith likened the club’s membership policy to employee benefit standards in the state. Some Minnesota companies allow same-sex partners to apply for same-sex benefits, he said, but they are not required to do so by law.

Thome said that Remick and his club have violated the Minnesota Human Rights Act by denying the Monsons a public accommodation because of their sexual orientation. The Monsons and their daughter have suffered “mental and emotional anguish” as a result of not being recognized as a family, she said, adding, “It’s a strange thing for an 11 year-old kid to be told that she’s not part of a family.”

The Monsons are seeking $50,000 in damages, but Thome said she hopes the trial will have much greater implications.

“If we can get the court to agree that this is not about the marriage debate – that this is about sexual orientation – I think the ruling will carry over to other institutions in our state and to other states as well.”

The case was filed in the district court in early March. A trial date has not been set.