Joseph G. Schmitt (Joe)

Representative Matters

Wage-and-Hour

• Olukayode v. UnitedHealth, Obtained denial of conditional certification in an independent-contractor misclassification case involving at-the-elbow consultants.  This matter is still in litigation.
• Stoute, et al v. Cerner Corporation, et al.: Defended Cerner against a California state-wide off the clock class action. Plaintiff dismissed class claims; negotiated a resolution on Plaintiff’s individual claim.
• Lopez v. Zenefits: Defended Zenefits against nationwide FLSA misclassification claims. Obtained order compelling plaintiffs to proceed to arbitration before reaching a confidential settlement of claims.
• Truesdell, et al v. Link Snacks, Inc.: Defended Link Snacks, Inc. against a nationwide FLSA misclassification case. This matter is still in litigation.
• Locicero, et al. v. Target Corporation: Defended Target against a nationwide FLSA misclassification Assistant Store Manager case. The Plaintiffs accepted individual initial offers of judgment and dismissed their nationwide FLSA collective action claims.
• Burnip v. HMS Host: Defended HMS Host against a statewide FLSA and Minnesota FLSA class and collective action. Negotiated a confidential resolution.
• LaPointe, et al v. Target Corporation: Defended Target against a statewide New York Labor Law misclassification case. Prevailed on a partial motion to dismiss, after which the Plaintiff agreed to accept a confidential individual settlement and dismiss the class claims.
• Scott, et al v. Cerner Corporation: Defended Cerner against a statewide Missouri Wage Law misclassification case.  This matter is still in litigation.
• Jones, et al. v. Best Buy Stores, L.P.: Defended Best Buy against nationwide class action alleging failure to compensate hourly store employees and Assets Protection personnel for time spent in security checks. Prevailed on motion to dismiss stores’ employees portion of the class and resolved remaining claims.
• Taylor, et al. v. Cerner Corporation: Defended Cerner against a statewide Missouri wage law misclassification case. Reached a confidential resolution.
• Crawford v. Cerner Corporation: Defended Cerner against a statewide Missouri wage law misclassification case. This matter is still in litigation.
• Speer, et al. v. Cerner Corporation: Defended Cerner Corporation against a nationwide FLSA claim arising out of payments under the fluctuating work week. This matter is still in litigation.
• Long, et al. v. CPI Security: Defended CPI Security against regional (North Carolina, South Carolina and Georgia) FLSA class action alleging that the company inappropriately classified sales personnel under the 7(i) exemption. Negotiated a confidential resolution.
• Swisher, et al. v. MetLife Home Loans, et al.: Defended MetLife against putative nationwide class action alleging misclassification of loan officers as exempt under the FLSA. Settled as part of a national resolution.
• Gifford et al v. Target Corporation: Defended Target against a putative nationwide class alleging misclassification of store executives under the FLSA. Successfully moved to disqualify plaintiffs’ counsel; reached confidential settlement of individual claims before initial 216(b) motion.
• Stroud et al v. Target Corporation: Defended Target against a putative nationwide class action alleging misclassification of warehouse executives under the FLSA. Successfully opposed initial 216(b) motion; reached confidential settlement of individual claims.
• U.S. Department of Labor v. Watab Hauling (USDC for the District of Minnesota): Successfully defended Watab Hauling against a class claim by the United States Department of Labor alleging failure to pay overtime to 70 employees under the Fair Labor Standards Act. Obtained summary judgment for Watab on the overtime claims on the grounds that the employees fell under the motor carrier exemption to the FLSA, and settled the remaining claims for less than $5,000.
• Delsing et al v. Starbucks: Defended Starbucks against a statewide class action alleging violations of the Minnesota Fair Labor Standards Act and Minnesota regulations regarding distribution of tips. Defeated class certification; reached confidential settlement of two individual claims.

Discrimination

• EEOC (Philadelphia Office) v. Target Corporation (USDC for the Eastern District of Pennsylvania): Defended Target against a class claim by the Philadelphia Office of the EEOC alleging racial discrimination in hiring, promotion, discipline and discharge as well as race-based harassment. Successfully concluded the defense with a favorable settlement.
• EEOC (Chicago Office) v. X Corporation: Defended Fortune 50 employer against a nationwide investigation of the Chicago Office of the EEOC alleging that the employer’s criminal background check policy violated Title VII of the Civil Rights Act of 1964. The EEOC agreed not to commence litigation.
• EEOC (Minneapolis Office) v. X Corporation (Commissioner’s Charge): Defended Fortune 500 employer against a nationwide Commissioner’s Charge alleging violations of Title VII and the ADA. Negotiated a settlement that did not include any payment to the EEOC or any individual.
• EEOC (Minneapolis Office) v. X Corporation (Directed Investigation): Defended Fortune 500 employer against a nationwide Directed Investigation alleging violations of the ADEA and EPA. Negotiated a settlement that did not include any payment to the EEOC or any individual.
• EEOC (Minneapolis Office) v. X Corporation (Commissioner’s Charge): Defended Fortune 50 employer against a Commissioner’s Charge of discrimination (brought by the Minneapolis Office of the EEOC) alleging a nationwide class claim. The EEOC claimed that the employer’s pre-employment tests constituted a pre-employment medical examination in violation of the ADA and that the employer’s pre-employment assessments had a disparate impact based upon gender, race and national origin. Negotiated a resolution with the EEOC.
• EEOC (Atlanta Office) v. X Corporation (Directed Investigation): Defended Fortune 50 employer against a nationwide Directed Investigation alleging age discrimination in hiring. This matter is still in confidential proceedings.
• Martin et al v. ING: Participated in the defense of putative nationwide class action race discrimination lawsuit against eight ING entities. Reached confidential settlement of individual claims.
• EEOC v. FMI, et al: Defended North Dakota Applebee’s franchisee against EEOC class action sexual harassment lawsuit. Reached a confidential settlement.
• EEOC v. Hobby Lobby: Defended nationwide retailer against EEOC lawsuit alleging violations of the Americans with Disabilities Act. Obtained a favorable resolution.
• EEOC (Milwaukee Office) v. Target Corporation: Defended Target against a 64 person class claim by the Milwaukee Office of the EEOC alleging racial discrimination in hiring and promotion. Obtained summary judgment on the EEOC’s individual and class claims from the District Court. The Seventh Circuit reversed a portion of the grant of summary judgment pertaining to four individual claims, which were then resolved.
• Tiffany Johnson et al. v. The Gap: Defended the Gap against a multi-plaintiff sexual harassment claim. The matter settled upon confidential terms during discovery.

Other Employment Litigation

• National Football League Player’s Assn v. NFL; Williams and Williams v. NFL: Defended the NFL and various individuals against a variety of claims arising out of administration of the NFL’s drug testing program and suspension of NFL players in Louisiana and Minnesota. Prevailed at summary judgment on NFLPA case and at trial in Williams and Williams case.
• Adrian Peterson v. National Football League: Defended the NFL against claims arising out of the suspension of Adrian Peterson. Prevailed before the Eighth Circuit Court of Appeals.
• Wynn, et al. v. Wells Fargo: Defended Wells Fargo against a national putative class action under the Fair Credit Reporting Act. Negotiated individual resolutions with the plaintiffs, after which the class claims were dismissed.
• Ankarlo v. Wells Fargo: Defended Wells Fargo against a national putative class action under the Fair Credit Reporting Act. Negotiated individual resolutions with the plaintiff, after which the class claims were dismissed.
• Frieler v. Carlson Marketing Co., Inc.: Successfully represented Minnesota Chamber of Commerce as an amicus in landmark litigation regarding amendments to the Minnesota Human Rights Act. The Supreme Court accepted our interpretation of the MHRA amendments and rejected the plaintiff’s theory that the MHRA imposes a strict liability prohibition against sexual harassment.
• Lee v. Fresenius Medical Care, Inc.: Successfully represented the Minnesota Chamber of Commerce as an amicus in groundbreaking litigation, obtaining reversal of a Minnesota Court of Appeals decision and protecting employers’ ability to form a contract not to pay vacation at the time of termination.
• Erik Gundacker v. Lockheed Martin Corp. and Unisys Corp.: Defended Unisys against a whistleblower claim by a former employee, prevailing on summary judgment before the District Court and the Eighth Circuit. Defended Lockheed Martin and Unisys against a subsequent False Claims Act lawsuit alleging damages in excess of one billion dollars, persuading the United States Attorney General’s Office not to intervene in the lawsuit and eventually convincing the relator to dismiss his claims without a monetary payment.

Recognitions and Honors

• Fellow, College of Labor and Employment Lawyers
• Member, American Employment Law Council
• Selected to Minnesota Super Lawyers list, labor and employment law

Publications and Presentations

• “The Growing Employer Risk – ERISA Liability for Employer-Sponsored 401K, Pensions and Other ERISA Plans,” Minnesota CLE, 2019 Upper Midwest Employment Law Institute, May 21, 2019
• “Exempt or Non-Exempt? Classifying Employees Correctly and Avoiding Potential Liabilities,” Minnesota CLE, 2019 Upper Midwest Employment Law Institute, May 21, 2019
• Moderator, “Arbitration Strategy and Tactics,” Minnesota CLE, 2018 Upper Midwest Employment Law Institute, May 21, 2018
• “Defending the Reprisal Claim: Strategies and Tactics,” Minnesota CLE, 2018 Upper Midwest Employment Law Institute, May 21, 2018
• “Blowing the Amended Whistle – Minnesota Whistleblower Litigation,” 2017 Upper Midwest Employment Law Institute
• “The Evolving Landscape of Equal Pay Legislation, Litigation and Regulation,” 2017 Upper Midwest Employment Law Institute
• “Cutting-Edge Age Discrimination Litigation Issues,” 2016 Upper Midwest Employment Law Institute
• “FCRA Liability: Background Screening is More Dangerous Than You Think,” 2016 Upper Midwest Employment Law Institute
• “Deeper Into The Forest: Detailed Compliance Initiatives to Address New Pay Equity Laws,” co-presenter Scott Fazio of EEO Logic, October 6, 2016
• “The Forest Thickens: Understanding and Complying With New and Proposed Pay Equity Laws,” co-presenter Scott Fazio of EEO Logic, March 15, 2016
• “Managing EEOC Investigations: How to efficiently conclude investigations while minimizing risk and liability,” 2015 Upper Midwest Employment Law Institute
• “Title VII – Key Cases and Issues,” 2015 Upper Midwest Employment Law Institute
• “Tread Carefully When Discussing Retirement With Your Employees,” Farm Equipment Manufacturers Association Legal Focus, Winter 2014 (co-author David James).
• “New Protections for Ex-Offenders,” WDIO-TV, January 6, 2014 (interview).
• “Minnesota Changes Application Rules,” KSTP-TV, January 5, 2014 (interview).
• “New Minnesota law Bans the Box,” KAAL-TV, January 5, 2014 (interview).
•  “Minnesota Restricts Conviction Questions,” WDAY-TV, January 2, 2014 (interview).
• “New Law Will Help Ex-Offenders Get Job Interviews,” KARE 11 Online, January 2, 2014 (quotations and video).
• “Ban the Box Takes Effect January 1,” KSTP-TV, January 1, 2014 (interview).
• “Upcoming FLSA Changes: What Corporate Counsel Need to Know,” The Corporate Counselor, June 1, 2014.
• “Something Is Out There The DOL Audit – How to Prepare For and Handle It,” Upper Midwest Employment Law Institute, St. Paul, Minnesota, May 20, 2014.
• “Dealing Successfully with the EEOC – From Charge Through Investigation and Litigation,” Upper Midwest Employment Law Institute, St. Paul, Minnesota, May 19, 2014.
• “Overtime Changes Are on the Horizon,” Star Tribune, May 5, 2014.
• The National Trend,” Today’s General Counsel, November 6, 2013.
• “Scant proof of emotional distress,” Minnesota Lawyer – Online, August 8, 2013 (quotations).
• “New sick leave law may have limited effect,” Minnesota Public Radio, July 30, 2013 (quotations).
• “What Minnesota’s Ban-The-Box Law Means For Employers,” Law360, July 10, 2013.
• .“With data gleaned from workers, companies hope to improve bottom line,” Minnesota Public Radio, June 3, 2013 (quotations).
• “New law will help ex-offenders get job interviews,” KARE-TV, May 30, 2013 (interview)
• “ADA Litigation Issues,” presentation to Upper Midwest Employment Law Institute, St. Paul, Minnesota, May 20, 2013.
• “Title VII – An In-Depth Update,” 2012 Upper Midwest Employment Law Institute
• “Thorny ADA Issues,” 2012 Upper Midwest Employment Law Institute
• “The ‘Inside Scoop’ – What In-House Counsel Wants From Their Outside Employment Counsel,” 2012 Upper Midwest Employment Law Institute
• “EEOC Fights to Keep Method for Pursuing Large-Scale Cases,” Law 360, April 9, 2012
• Wage and Hour Handbook: Federal and Minnesota, Minnesota CLE, 2011 (chapter author)
• “Social Media Policies in the Wake of the NLRB,” Corporate Counselor, October 2011
• “The Hottest Topics in ADA Litigation,” 2011 Upper Midwest Employment Law Institute
• “Lawyers on EEOC Investigations and Subpoena Power,” 2011 Upper Midwest Employment Law Institute
• Discipline and Discharge Handbook, First Edition, Minnesota CLE, 2010 (chapter author)
• Section 181 Summary Guide, Minnesota CLE, 2012
• “Pre-Employment Section,” 2010 Upper Midwest Employment Law Institute
• “Challenges and Pitfalls of the Older Workers Benefit Protection Act,” 2009 Upper Midwest Employment Law Institute
• “Discrimination in Company: Associational and Pregnancy Discrimination Under Minnesota and Federal Law,” EEOC Presentation, February 2007.
• “Layoff Liabilities: Aging Workforce Sparks Growth in ADEA Class Actions,” Inside Counsel, September 2007 (quotations).
• “The Brave New World of Pre-Employment Testing,” Journal of Corporate Recruiting Leadership, October 2007.
• “Navigating the EEOC’s Renewed Focus on Systematic Race Discrimination,” Employment & Labor Relations Conference, October 17, 2007.
• “Risky Business: Age Discrimination Liability in the Twenty-First Century,” Corporate Counsel, November 2007.
• “Personality Tests as Hiring Tools,” Wall Street Journal, March 15, 2006 (quotations).