In a recent 8th Circuit case published on March 1, 2017, LaKeysia Wilson v. Arkansas Dept. of Human Services (DHS), Wilson, an African American woman, sued DHS alleging disparate treatment on account of race as well as a retaliation claim.

Another DHS employee, an African American woman, Sharon Meeks was fired in 2013 and filed a discrimination charge with the EEOC.  The State Appeal panel ordered her reinstated.  Meeks’s supervisor led the investigation resulting in Meeks’s termination.  The supervisor urged the plaintiff, Wilson, to apply for the same open program position for which Meeks had applied and told Wilson that she “was determined to thwart the efforts of Meeks.”  Meeks and Wilson were the only ones who applied for the job.  In March 2014, Wilson got the job, which was a promotion to program supervisor.  DHS then re-hired Meeks in Wilson’s old position, and fired her three (3) months later.

Weeks after Meeks was fired, Wilson began to receive what she claimed to be unfair criticism from her supervisor and was stripped of her supervisor duties on July 2, 2014.  She filed a charge of discrimination on September 8, 2014, alleging harassment based on race and disability.  Three weeks later, she was put on a performance improvement plan, and the next week she received a written warning for work that a Caucasian employee did not accomplish.  On October 22, 2014, six (6) weeks after filing the EEOC charge, Wilson was terminated.

The 8th Circuit affirmed the dismissal of the disparate treatment charge because Wilson did not state sufficient grounds to establish that she was treated differently than a Caucasian colleague.  As to the retaliation claim, Wilson was required to show (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) a causal connection exists between the two. See Wells v. SCI Mgmt., L.P., 469 F.3d 697, 702 (8th Cir. 2006).  The 8th Circuit found that Wilson sufficiently pled the first two elements, but the issue of the causal connection between the filing of the EEOC charge and the firing still existed.  The Court found that the six-week period between the EEOC charge and the termination plausibly alleged a casual connection.  The Court found that without a detailed explanation why DHS terminated Wilson, DHS’s alternative explanation for the firing was not “sufficiently convincing” finding that while the factual allegations may be consistent with termination due to poor performance, that was not an “obvious alternative explanation” rendering her claim implausible.

While DHS may ultimately be able to show that Wilson had performance issues sufficient to warrant her termination, the Employer takeaways from this case are clear:  Employers must document performance issues.  Employers must also take all complaints of discrimination seriously.  Also, as harsh as it may sound – hire slow, but fire fast, preferably before the employee with performance issues complains about discrimination.  Doing so will go a long way to avoid paying a lawyer to defend a retaliation claim.





At the end of 2016, the Department of Labor issued a decision denying summary judgment for Claimant in Eixenberger v. Rapid City Winair Company and Travelers Ins. Co., HF No. 128, 2014/15, citing that several factual issues still needed to be hashed out and summary judgment was not proper.

Eixenberger worked for Rapid City Winair Co. as a delivery driver and as warehouse personnel. He pulled products and loaded trucks, and also drove the delivery truck.  On July 8, 2013, Eixenberger was loading the truck on an 87-degree day, and earlier that day told a co-worker that he felt sick to his stomach. Later that afternoon, a co-worker found Eixenberger lying next to the truck, unresponsive. Emergency medical services were called and he was rushed to the hospital, but unfortunately passed away due to what was later determined to be a heart attack. The emergency room doctor, Dr. Newman, opined Eixenberger’s work activities on July 8, 2013, were a major contributing factor in his heart attack, stating that the physical exertion that day caused the heart attack.

Several facts that Dr. Newman relied upon in reaching that conclusion were determined by the Department to be disputed – including the amount of physical exertion, including how much lifting was going on and the pace at which Eixenberger was working, Eixenberger’s physical appearance prior to the collapse and statements he made to co-workers. Dr. Newman conceded that his opinion would change if Eixenberger’s physical exertion was less than he understood it to be at the time he gave his opinion.

Employer and Insurer offered the opinion of Dr. Del Core, a board-certified cardiologist from Creighton Medical School. Dr. Del Core ultimately testified that the heart attack was not necessarily related to Eixenberger’s work activities. The Department noted that Dr. Del Core assumed that Eixenberger was not performing extreme physical activity on the day that he died, and pointed out that the level of exertion was a disputed fact at that heart of the case. In denying Eixenberger’s motion for summary judgment, the Department stated that “whether…unusual activity occurred that day is disputed, and a hearing will be needed to resolve the matter.”

This decision highlights the importance of a factual investigation after an injury or death, including speaking to all the witnesses. It also highlights the importance of an employer keeping a pulse on their employees and the tasks that they are performing on any given day and to ensure proper documentation of those tasks where feasible. These cases can be won or lost based on the expert testimony, and the law provides that expert testimony is only as good as the facts upon which it is based – so make sure you have all the facts.

As you know, the Occupational Safety and Health Act of 1970 was enacted for the purpose of ensuring the safety and health of employees by setting and enforcing certain standards in the workplace.  In furtherance of that mission, OSHA has the power to review settlement agreements between employers and employees under its authority to protect the administration of whistleblower statutes.

In August 2016, the Director of Whistleblower Protection Programs, Maryann Garrahan, issued a memorandum providing Interim Guidance to employers to aide in compliance with these standards.  This guidance supersedes the guidance in Chapter 6, paragraphs XII.E.2 and 3 of the OSHA Whistleblower Investigations Manual, but does not otherwise change OSHA’s policies with regard to review of settlements.  The Interim Guidance states that it is designed to “ensure that an employer does not contractually restrict or otherwise deter an employee from engaging in whistleblower activity and collaterally to help ensure that employees who do engage in such activity do so without fear or concern of retaliation.”

According to Garrahan, “OSHA will not approve a “gag” provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity.”  Often, constraints of this kind arise from broad confidentiality or non-disparagement clauses, which OSHA interprets as restricting an employee’s ability to engage in protected activity. OSHA has provided other examples of prohibited provisions in its Interim Guidance, including prohibiting:

  • A provision that restricts the complainant’s ability to provide information to the government, participate in investigations, file a complaint, or testify in proceedings based on a respondent’s past or future conduct.
  • A provision that requires a complainant to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct.
  • A provision that requires a complainant to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employer has violated the law.
  • A provision that requires a complainant to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.

So what does this mean?  Employers should immediately review their severance, settlement, and confidentiality agreement templates to ensure compliance with OSHA’s new guideline, and attorneys need to be aware of the same in drafting any such agreements.

For more information on this topic, you can visit http://bit/ly/whistleblower-guidelines.  There, you will find additional information, including guidance regarding avoiding language such as “except as provided by law” in your agreements, and what language should be used instead. If you have any questions, please feel free to call our office to discuss.

Thirty plus years of employment and worker’s compensation practice has exposed me to thousands of personnel files and interviews, not to mention my experience with what could easily be twice that many management-level employees. Those that manage employees or those charged with the responsibility of managing the business’ worker’s compensation claims routinely make four common mistakes:

1. Failing to consistently enforce the policies, rules and procedures of the company. An employer must be consistent with every employee and with every policy. Nothing is harder to explain than why the rule/policy/procedure was being enforced against Jane but not against John or others.
2. Failing to accurately report and document what goes on in the workplace. Many employment related claims turn on who said what to whom. In other words, the “she said, he said” credibility battle is at the crux of many disputes. Inaccuracy in your documentation will come back to haunt you every time.
3. Failing to use common decency and respect. Follow the Golden Rule we all learned as children: treat others as you would like to be treated.  This is a simple yet often overlooked rule.
4. Failing to document the personnel file. Although much has been written about the importance of documentation, it is remarkable the lack of documentation we see in many situations. Properly documented files leads to less confusion and can save everyone time and money in the end.

If you are interested in learning more about this topic, please contact the authors regarding more in-depth training we provide on these subjects and how to avoid these mistakes.

Employers often mistakenly believe that an employee who quits employment precludes the former employee from obtaining unemployment benefits in South Dakota. The general rule does, indeed, provide as such. However, exceptions exist.

First, the quitting must be “voluntary”. Thus if the employee is given the option to resign or be fired, then employee is still entitled to unemployment benefits.  Second, the quitting must be without “good cause”. More common “good cause” reasons include (1) the employment is hazardous to health as certified by a qualified medical provider; (2) relocation by the employee was required for continued employment; (3) the employer breached or substantially altered the employment contract; (4) the employer substantially disregard of the standards of behavior; (5) the employee’s religious belief mandated the quitting and no reasonable accommodation was offered before the employee quit; (6) the employee had to quit to be protected from domestic abuse and s/he did return to the abuser; and (7) the employee quit to be with a spouse who was reassigned military duties. Thus, employers need to make sure they are fulfilling their duties to employees, such as keeping a workplace free from unlawful harassment and/or discrimination, discussing religious accommodations where the issue arises, providing a safe environment for the employee to work, etc. Doing so will protect against an employer’s experience-rating account being subjected to benefit charge.

This blog was written by Lisa Marso.  If you have any questions or want to discuss this issue further, please contact Lisa at

The National Labor Relations Board (the “Board”) continues its heightened scrutiny of employee handbooks’ social media policies as the Board grapples with the concept of “protected concerted activity” in the era of social media.  In an August, 2016 ruling, the Board affirmed an administrative law judge’s decision holding that Chipotle’s social media policy violated the National Labor Relations Act (the “Act”).

By way of background, the case arose when Chipotle terminated an employee for tweeting about the working conditions of Chipotle’s employees and for circulating a petition amongst coworkers that addressed break periods.  One of the tweets posted included a news article concerning hourly workers having to work on snow days when other workers were off and public transportation was closed. When asked if the employee would remove the tweets, the employee agreed, and the tweets were subsequently taken down.

In part, the challenged portions of the social media policy were:

“If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information”

“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

An employer violates Section 8(a)(1) of the Act when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.  Section 7 rights include, among others, the right of employees to self-organize, join unions, bargain collectively, and to engage in other concerted activities, such as discussing working conditions and wages.

The Board held that, while neither of the challenged provisions explicitly prohibited Section 7 activity, employees would reasonably construe portions of the provisions to restrict the exercise of Section 7 activity, and could serve to chill employees in the exercise of their Section 7 rights. The Board noted that ambiguous rules are construed against the employer.  As such, the Board ruled that Chipotle violated Section 8(a)(1) of the Act by restricting its employees’ Section 7 rights.

The Board’s decision serves as yet another reminder that employers must review and closely scrutinize and parse their social media policies to evaluate not only whether, by its terms, a policy prohibits Section 7 activity, but whether an employee could reasonably construe the policy to prohibit Section 7 activity.  In particular, employers should avoid vague or ambiguous verbiage and should consider using expressly defined terms.

As a final word, Chipotle’s social media policy also contained a disclaimer that said, “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws or any other privacy rights.”  The Board found that this disclaimer did not serve to cure the unlawfulness of the foregoing provisions.

In recent weeks, zero dollar allocation Medicare Set Aside’s (MSA) came into question. Initially it was thought that on any claim, even fully denied claims, where approval of a zero dollar MSA was sought, documentation would have to be provided to the Centers for Medicare and Medicaid Services (CMS) to support the zero dollar MSA. This would include submitting (1) Final settlement documents or a statement that none exist; (2) All court rulings including but not limited to rulings on compensability; or, (3) If no court ruling exists on compensability, treatment records showing no further treatment is needed for the work injury or a statement from the doctor concerning future treatment. However, additional information surfaced that indicates these stricter guidelines would not apply to settlements of completely denied or disputed claims.

As for zero dollar allocation MSA’s on accepted claims, it is our understanding at Boyce Law that the above-guidelines will likely be put in place. In these cases, in order to secure CMS approval, it will be necessary to obtain a court order that establishes the claim is not compensable, or treatment records showing no further treatment for the work injury will be required.

With that being said, we will watch to see if CMS issues any new guidelines via a policy memo in the future, and keep you apprised of those developments.

The South Dakota Department of Labor recently held that when a Petition for Hearing is not filed within two (2) years from the date of the denial letter, the claim cannot be reopened for a change in condition pursuant to SDCL 62-7-33. In Palmquist v. Luverne Truck Equipment, Inc. and Travelers Insurance, the Claimant’s medical benefits were denied via letter and no Petition for Hearing was submitted until after two years had passed from the denial. Claimant argued that a letter she filed with the Department prior to the denial letter should be considered a Petition for Hearing (the medical benefits were denied after benefits had been issued for a matter of years). The Department first analyzed the letter that Claimant sent to the Department in prior years to determine whether it included the necessary information to be considered a Petition for Hearing. In determining that the letter was not a Petition for Hearing, the Department relied on Administrative Rule 47:03:01:02 to hold that the letter did not contain the specific information required by the Rule. Since there was no prior Petition for Hearing on file, the Department then analyzed whether SDCL 62-7-33 applied to a claim where the two year statute of limitation applied.

It was undisputed that Claimant’s Petition for Hearing was filed after the two year statute of limitations had run. Claimant argued that her claim should be reopened under the change in condition statute found at SDCL 62-7-33 because she experienced a change in her physical condition after the two year statute of limitations had run. Claimant relied on language from Owens v. F.E.M. Electric Assn., Inc., 2005 SD 35, 694 N.W.2d 274, 280, when arguing that a change in condition after the expiration of the two year statute of limitations allows Claimant to continued workers’ compensation benefits. The Department denied Claimant’s request to reopen her claim and held that Claimant’s assertion flied in the face of the clear language of SDCL 62-7-35, which says all claims which have been denied in writing and for which no petition for hearing has been filed are “forever barred.” The Department also held that allowing a claim to be reopened under SDCL 62-7-33 would be contrary to the Legislature’s intent. Claimant also made equitable arguments to overcome summary judgment and the Department rejected them in their entirety.

This matter has been appealed and is currently set for oral arguments in Spring of 2017.

While mediation is more of an art than a science, there are a few things to consider that may increase the chances of a successful mediation of an employment claim.

First, mediation should be attempted after sufficient information has been exchanged for both parties to get an idea regarding the strengths and weaknesses of their case, but early enough for both sides to save costs. Without an exchange of information providing a basis for the claims, defenses to those claims and an idea regarding the damages at issue, the mediation will be less effective as the parties will spend the day attempting to understand the other side’s position. That said, it is seldom necessary for lengthy and expensive depositions and document production prior to mediation. One of the best ways to ensure that both sides understand each other is to simply require the parties to exchange the factual portion of the mediation submission to the mediator as well as the opposing party.

Second, selection of a mediator can be very important in the employment case. This means taking into consideration the personality of the mediator as it relates to the personality of the parties, as well as considering the mediator’s substantive experience in handling employment disputes. The parties should seek a mediator with a personality that will assist settlement – not impede it. Given the sensitive nature of most employment disputes, hiring a mediator that understands the volatile nature is invaluable.

Third, from the employer’s standpoint, consider bringing someone the employee liked or respected while employed with the employer to the mediation. And, for heaven’s sake, do everyone a favor and do not bring the harasser to the mediation.

Fourth, parties often wonder whether having joint opening sessions is a good idea. While much has been written in the mediation world about this topic, from my experience, they are a great opportunity for both sides to provide information they feel is important about the claim so that each has a better understanding of the issues. Do not cover up the bad facts and weaknesses of your case. Instead, disclose them early on and create credibility with the mediator and the other side.

Finally, have some rational explanation for your offers and counter offers. Be flexible and willing to listen and do not react emotionally if possible. Never forget that it is the mediator’s job to help both sides to reach a reasonable resolution and doing so takes time. Be patient and creative. While money is always a motivating factor, many employment disputes end up resolving because of non-monetary terms.


There are some common myths that prevail in the field of workers’ compensation surrounding compulsory medical examinations set up by the Employer and Insurer.  Below, some of those myths are dispelled and the law on this issue clarified.

Myth #1: The Compulsory Medical Exam Must Be Set up Where the Employee Resides

At the expense of the employer, an employee must present for an examination to a “duly qualified medical practitioner” selected by the employer, at a time and place reasonably convenient for the employee.  Under South Dakota law, the physician must be licensed in SD in order for the employer to compel the employee to attend.  This does not mean that a non-licensed SD physician cannot be used, it just means that the only way to get the Department to compel attendance, or suspend benefits, is when the employer complies with SDCL 62-7-1.

Myth #2:  Employee is Not Allowed to Have Anyone Present at the Examination

The employee may request that the examination take place in the presence of a duly qualified medical practitioner paid for by the employee.  If the examination is made without a duly qualified medical practitioner present on behalf of the employee, the employee is entitled to a written report from the examination if requested.

Myth #3: An Employer is Limited to Only One Compulsory Examination of the Employee

Under Title 62, the Employer is entitled to get a compulsory examination once every four (4) weeks for purposes of determining the nature, extent, and duration of the injury received by the employee.

Myth #4: An Employee is not required to attend the IME 62-7-3

If an employee refuses to submit themselves to a medical examination, or unnecessarily obstructs the examination, the employee’s right to compensation payments can be temporarily suspended until the examination takes place, and no payments need to be made under Title 62 until that occurs.

Myth #5: When the Claimant Does Attend the Exam, He Can Receive the Missed Benefits

If the benefits are suspended pursuant to SDCL 62-7-3, the Claimant is not eligible for benefits that would have been awarded from the time he/she fails to attend a compulsory medical examination to such time as he attends the examination or reaches maximum medical improvement.

If you have any questions about IME’s or South Dakota law regarding the same, please give us a call to discuss.