Minnesota Legalized Some Forms of Marijuana for Recreational Use-What Does that Mean for Employees?

In July 2022, Minnesota passed a bill to legalize certain kinds of marijuana for recreational use. The new law modifies Minnesota’s list of controlled substances to exclude “industrial hemp” products that contain no more than 0.3 percent of any form of THC. The law also allows individuals ages 21 or older to purchase edible and drinkable products containing no more than five milligrams of THC per serving and no more than 50 milligrams of THC per package.

You may want to celebrate by partaking in some of the new THC-infused products sold at your local store, but keep in mind there may still be employment consequences, depending on the type of job you have and the policies your employer has in place.

The Minnesota Lawful Product Consumption Act prohibits employers from refusing to hire a job applicant or discipline or discharge an employee because they have engaged in the use or enjoyment of products that are lawful for consumption, such as the THC-infused products which are now legal in Minnesota. However, if the use of these products could impair an employee in such a way that limits their ability to do their job, such as driving, there are exceptions to the Act.

If your employer or a prospective employer has not followed these legal requirements, or you have experienced retaliation for using lawful consumable products, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

Are Real Estate Agents Protected from Harassment and Discrimination under the Minnesota Human Rights Act (MHRA)?

The Minnesota Human Rights Act (“MHRA” or “Act”) protects individuals from discrimination in the workplace,[1] including sexual harassment as a form of gender discrimination.[2] Workers are further protected against termination, demotion, or other retaliatory employment actions in response to reporting discrimination or sexual harassment.[3] Ultimately, the MHRA was designed to “provide more expansive protections to Minnesotans than federal law,” its provisions intended to be “construed liberally.”[4]

Enacted in 1973, the law under the MHRA is generally well-developed. That said, few cases have been litigated regarding MHRA protections for real estate agents in particular. This gap in litigation has led to a gray zone surrounding the question of whether real estate agents receive MHRA protection for workplace harassment and discrimination.

This question can be answered through two main lenses: (1) by considering real estate agents as employees for purposes of the MHRA or (2) by looking to other subdivisions of the MHRA that grant real estate agents protection regardless of employee status.

The MHRA expressly protects employees from unfair discriminatory practices and retaliation.[5] Courts traditionally look to a variety of factors to determine whether an individual constitutes an employee or an independent contractor.[6] Such factors include, for example, the method of payment, who provides the necessary tools/office space, and the level of control the employer has over the worker.[7] Under Minnesota law, the level of control an employer has over an individual is the most important factor—the more control, the more likely that person constitutes an employee.[8] While the control factor plays heavily into MHRA cases, courts have opted to reframe the analysis as one that examines the economic realities underlying the work relationship to decide “whether the worker is likely to be susceptible to the discriminatory practices Title VII was designed to eliminate.”[9] Given the close working relationship between real estate agents and their brokerages (which agents typically have exclusive contracts with), Minnesota courts would likely consider real estate agents to be employees for purposes of the MHRA, as their position leaves them “susceptible to the discriminatory practices Title VII was designed to eliminate.”[10]

That said, because the MHRA was designed to be widely inclusive, real estate agents may find protection under other sections of the Act regardless of employee status.

The MHRA also prohibits any “person having the right to sell, rent or lease any real property from “discriminat[ing] against any person or group of persons because of … sex … in the terms, conditions or privileges of the sale, rental or lease of any real property or in the furnishing of facilities or services in connection therewith.”[11] Current case law addressing this section of the MHRA primarily concerns the relationship between a seller and buyer or renter of real property.[12] However, the language of the statute prohibiting sex discrimination in connection with real estate services may apply to the broker-agent relationship. As service providers in the real estate industry, real estate agents may fall under the protection afforded by the MHRA.

Similarly, the MHRA prohibits “any real estate broker, real estate salesperson, or employee or agent thereof [from] intentionally engag[ing] in any reprisal against any person because that person opposed” a forbidden.[13] The language “prohibiting reprisal against any person” likely supports any report by a real estate agent of sexual harassment or discrimination as protected, regardless of employee status.

Finally, the MHRA forbids “business discrimination.” In other words, contracting parties cannot “discriminate on the basic terms, conditions, or performance of the contract because of a person’s race, national origin, color, sex, sexual orientation, or disability.”[14] In the agent-broker context, the following examples would constitute business discrimination under the MHRA:

  • A broker or agency’s termination of a real estate agent’s contract because of discriminatory reasons;
  • A broker or agency’s termination of a real estate agent’s contract because the agent reported discrimination or sexual harassment; and
  • A broker or agency offering a contract to a real estate agent contingent on that agent submitting to romantic or sexual advances.

Ultimately, the law governing the broker-agent relationship under the MHRA is slim. While this article provides a general overview of relevant Minnesota law, each case presents unique circumstances that are best analyzed by a practicing employment law attorney.

NOTES:

[1] Minn. Stat. Ann. § 363A.08.

[2] Minn. Stat. § 363A.03, subd. 13.

[3] Minn. Stat. Ann. § 363A.15.

[4] Kenneh v. Homeward Bound, Inc., 944 N.W.2d 222, 229 (Minn. 2020) (quoting Minn. Stat. § 363A.04).

[5] Minn. Stat. Ann. § 363A.08.

[6] Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989).

[7] Abel v. Abbott Nw. Hosp., 947 N.W.2d 58, 75 (Minn. 2020).

[8] Id.

[9] Wilde v. County of Kandiyohi, 15 F.3d 103, 105 (8th Cir. 1994).

[10] Id.

[11] Minn. Stat. Ann. § 363A.09, Subd. 1(2).

[12] See, e.g., Fletcher Props. v. City of Minneapolis, 947 N.W.2d 1, 16 (Minn. 2020) (noting that the refusal to rent property because of public assistance use constitutes an unfair discriminatory practice); Fletcher Props. v. City of Minneapolis, 931 N.W.2d 410, 416 (Minn. Ct. App. 2019) (noting that landlords cannot discriminate against tenants with regard to public assistance status).

[13] Minn. Stat. Ann. § 363A.15.

[14] Minn. Stat. § 363A.17(3); see also Minn. Stat. § 363A.03, subd. 30 (“person” includes partnership, association, [and] corporation . . .”).

Brian Rochel and Phillip Kitzer Recognized as Super Lawyers

Kitzer Rochel is proud to announce that Brian Rochel and Phillip Kitzer have both been selected as a Minnesota Super Lawyer in 2022. Attorneys are selected based on their professional accomplishments and leadership skills.

Both Mr. Rochel and Mr. Kitzer are highly dedicated attorneys who practice on behalf of employees involved in a wide variety of employment-related legal disputes. They represent whistleblowers and other employees who are wrongfully terminated, discriminated and/or retaliated against. Mr. Rochel serves on the Board of Directors for the Minnesota Chapter of the National Employment Lawyers Association, and Mr. Kitzer serves on the Governing Counsel for the Labor and Employment Law Section of the Minnesota State Bar Association. Mr. Rochel and Mr. Kitzer are each certified as Labor and Employment Law Specialists by the Minnesota State Bar Association.

If you would like to consult with Mr. Kitzer or Mr. Rochel, please contact us today.

NPR Details Struggle Workers Face as a Result of Long COVID

We have discussed Long COVID here before. In an important article, NPR discussed the latest updates on Long COVID and its impact on workers. The article also discusses disability laws, such as the Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA), and how they interact with employees experiencing Long COVID.

Long COVID is an increasingly important issue facing Americans and employees. Check out the article and contact us if you have questions about Long COVID, employment law or disability law.

Who Owns a Mobile Phone or Smartphone Used for Work?

Employees and workers frequently ask who owns a smartphone that is used for work purposes. The answer is, it depends.

Many companies provide mobile phones to employees for work-related use or cover the costs of personal phones as part of a benefit policy. Usually, the question of ownership doesn’t arise. However, if you find yourself tied to a company lawsuit, you or your employer may be required to provide data from your phone (such as text messages, emails, or call logs). 

In these situations, the question is less about who owns the phone and its data and more about whether the person or organization to which a request for data is directed possesses, has custody of, or controls the device and its data. Fed. Rules Civ. Proc. R. 34(a)(1).  

The Federal Rules of Civil Procedure do not define “possession, custody, or control,” and courts across the country have varying interpretations of this phrasing. In Minnesota, courts have held that a person or organization possesses, has custody of, or controls any data it has the practical ability to obtain. The practical ability standard requires that a party preserve, collect, search, and produce data it has the practical ability to obtain regardless of that party’s legal entitlement or physical possession of the device. 

Whether the mobile phone in question was employer-issued may impact the question of practical ability. If the phone was employer-issued, the argument could be made that the employer has custody of the device and controls all its data. This argument is strongest when: 

  1. The employer notified the employee upon issuance that the device and its data was and would remain employer property; 
  2. The employer notified the employee that the device usage could be monitored, with no expectation for privacy; 
  3. The employer audited employee use of the device; and 
  4. The employer notified employees following detection of any inappropriate use. 

That said, “bring your own device” (BYOD) policies, requiring employees to use their personal devices to conduct business, have become more common. In one specific example, the Sedona Conference has taken the position that employers who have enacted a BYOD policy do not have legal control over personal text messages when the policy does not assert employer ownership over the texts. (The Sedona Conference, Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations19 Sedona Conf. J. 495, 531 (2018).) 

Ultimately, the question of employer ownership and the “practical ability” to obtain personal device data, especially under BYOD policies, is often context specific. Employees should read all device policies carefully. In cases where specific policies don’t exist, employees should understand the risks associated with using personal devices to conduct work-related activities (e.g., being asked to hand over data housed on your personal phone). Given the intricacies tied to this question, you should seek out specific advice about your obligations and rights regarding data stored on both employer-issued and personal mobile phones. 

What If I Fail a Drug or Alcohol Test at Work?

Employer-administered drug and alcohol testing in Minnesota is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA). If your employer or prospective employer requires you to take a drug or alcohol and you fail, you have certain legal rights.

If you test positive, you must be given written notice of your results and your rights under DATWA.[1] Your employer may require you to provide information on medication you take or other information relevant to an explanation of the positive test result.[2] Your employer must cover the cost of the initial test and a confirmatory test. The employee may request a confirmatory retest at their own expense. You have the legal right to submit information that explains your positive test result within three working days of receiving notice of confirmatory test results.[3] Within three working days, you may also request a confirmatory retest of the original sample at your expense.[4]

If you test positive for a pre-employment drug or alcohol test associated with a conditional offer of employment, the offer may not be withdrawn based on the results of the initial test alone. To withdraw the offer for a positive test result, the initial test result must be verified by a confirmatory test.[5]

If you test positive while you are already an employee, you have a number of legal rights, and your employer is subject to certain legal requirements. First, your employer is not allowed to terminate your employment, discipline you, discriminate against you, or require rehabilitation on the basis of an initial test that has not been verified by a confirmatory test.[6] Second, if the positive result is your first positive result for that employer, your employer cannot terminate your employment unless you are first given the opportunity to participate in a drug or alcohol counseling or rehabilitation program and then you refuse to participate in or fail to complete the program.[7] However, your employer may temporarily suspend you or transfer you to another position pending the outcome of a confirmatory test or confirmatory retest if the employer reasonably believes this is necessary for safety reasons.[8]

If your employer or a prospective employer has not followed these legal requirements or retaliated against you for asserting your rights under DATWA, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

 

[1] Minn. Stat. § 181.953, subd. 6(b).

[2] Minn. Stat. § 181.953, subd. 6(b).

[3] Minn. Stat. § 181.953, subd. 6(c).

[4] Minn. Stat. § 181.953, subd. 6(c).

[5] Minn. Stat. § 181.953, subd. 11.

[6] Minn. Stat. § 181.953, subd. 10(a).

[7] Minn. Stat. § 181.953, subd. 10(b).

[8] Minn. Stat. § 181.953, subd. 10(c).

Phillip Kitzer and Brian Rochel Present at Prestigious National Conference for Workers’ Rights

The National Employment Lawyers Association (NELA) held its Annual Convention in San Francisco, California from June 30 through July 3, 2022. NELA is the largest organization of lawyers who represent workers in the United States and is focused exclusively on advancing employee rights and making the workplace better for all Americans.

The Annual Convention is the largest meeting of NELA members each year. The Annual Convention provides several days of intensive, high-quality continuing legal education (CLE) training for employment lawyers. Both Phillip Kitzer and Brian Rochel were invited to speak at the Convention—an honor that very few members are given.

Brian presented on a panel entitled “Staying Organized in Litigation.” The panel provided detailed tools and strategies for plaintiff’s advocates to use in their practices to increase organization and litigation skills.

Phillip presented on a panel entitled “COVID-19 Claims for Workers.” The panel provided in-depth updates on the state of employment law as it relates to the COVID-19 pandemic. The panelists covered the rapidly evolving area and discussed the latest laws, statutes and case developments.

Phillip and Brian regularly speak on employment law topics and present around the country. If you have questions about employment law please do not hesitate to contact us.

Minnesota is an At-Will Employment State, What Does That Mean?

When you hear that Minnesota is an “at-will” employment state, you may wonder what that means for you as an employee. It simply means you can quit your job for any reason at any time, you do not have to give notice nor a reason to your employer for leaving your position.

However, it also means an employer can terminate your employment for any reason at any time as long as the reason for termination is not illegal. For example, it is illegal for an employer to terminate employment based on an employee’s race, age, sex, sexual orientation, or religion, to name a few protected classes and statuses. Similarly, it is illegal for an employer to terminate an employee because the employee reported something unlawful, like discrimination or corporate wrongdoing.

Being an “at-will” employment state makes it easy for an employee and their employer to part ways if the position is not working for one or both of the parties. But, if you feel you have been wrongfully terminated based on discrimination, contact us at Kitzer Rochel. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

Is Long Haul COVID-19 a Disability under the Law?

After dealing with COVID-19 for over two years, many people who have dealt with the novel coronavirus are also dealing with longer term symptoms and they are not going away easily. This is known as “Long Haul COVID-19.” Long Haul COVID-19 is becoming more common and impacting the lives of many people. It causes many problems that medical professionals and scientists are still working to understand.

For example, Long Haul COVID-19 can lead to cognitive difficulties and make it difficult for employees to complete their work responsibilities in the same manner they could before becoming infected.

This raises the question: is Long Haul COVID-19 considered an “actual” disability under the Americans with Disabilities Act (ADA)?

According to the U.S. Department of Health Human Services, Long Haul COVID-19 can be a disability under the ADA if it substantially limits one or more major life activities. This includes any physical or mental impairment caused by Long Haul COVID-19, so long as it substantially limits a major life activity. The law is very similar under the Minnesota Human Rights Act (MHRA). The MHRA is Minnesota’s law protecting workers who are disabled, which may include Long Haul COVID-19.

The symptoms of Long Haul COVID-19 vary widely and can be different for everyone. Symptoms can last anywhere between weeks to months or even longer. Every case of Long Haul COVID-19 is different. Therefore, an assessment must be made on a case-by-case basis to determine whether a person’s case of Long Haul COVID-19 substantially limits a major life activity.

If an employee has Long Haul COVID-19 that substantially limits one or more major life activities, that employee is entitled to the same protections from discrimination as any person with a disability under the ADA or MHRA.

This also requires employers make reasonable accommodation for employees who have Long Haul COVID-19, so long as it substantially or materially limits a major life activity.

An employer’s requirement to make such accommodations is based on many factors, for example, the size of the employer and the job duties the employee is responsible for based on their job role. Thus, it is important to seek legal advice if you have questions about your specific situation.

If you feel you have experienced discrimination and/or retaliation at work, based on Long Haul COVID-19  symptoms, our attorneys at Kitzer Rochel, PLLP are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace. Contact us today for a case evaluation.

 

FAIR Act to End Forced Arbitration Passes in House, Moves to Senate

On March 17, 2022 the Forced Arbitration Injustice Repeal Act of 2022 (“FAIR Act”) passed the U.S. House of Representatives and has been referred to the Senate Committee on the Judiciary. This bill makes pre-dispute arbitration clauses unenforceable in certain cases, including employment cases. A similar bill that makes pre-dispute arbitration clauses unenforceable in sexual harassment or assault cases was recently signed into law earlier this year.

Currently, employers are allowed to use contract provisions known as “arbitration agreements” to force employees to bring their claims in front of an arbitrator, rather than going to court. Arbitration is a way of resolving a dispute outside of the courts, where a private arbitrator is hired by the company to review the evidence, listen to the parties, and make a decision. There is no right to a jury, and the decision cannot be appealed. These mandatory arbitration agreements are often required as part of the on-boarding process and are signed by unsuspecting employees before they ever know they have a legal claim against their employer. These agreements are drafted by employers in order to favor employers and prevent employees from having their day in court.

If the FAIR Act passes the Senate and is signed into law, employees will no longer be forced to arbitrate their employment law claims. Rather, employees will have the choice of whether to arbitrate or have their day in court.

If you have questions about how the FAIR Act could impact your employment law claims, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options in light of this potential new law.