When Do I Get My Final Paycheck?

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When an employee resigns or is terminated, they usually wonder when they will get their last paycheck. When must a company pay a final paycheck, and when could it become wage theft?

First, if an employee is discharged or terminated, then they must be paid “immediately upon demand.” That means that an employee can request a final paycheck immediately after learning they were fired. An employer then has 24 hours to provide the final paycheck after that request or demand.

Second, if an employee gives proper notice of resignation, employers may provide a paycheck on the employee’s last day at work. But employers are NOT legally required to do so. An employer has up to the pay period following the employee’s final day (that is more than 5 days after the employee quit) to provide an employee their final paycheck. But it cannot be longer than 20 days after separation. So, if an employee resigned on the same day as their “payday,” that doesn’t mean that an employee will receive their final paycheck on that day.

If you resigned from an employer and the next pay period has passed and you did not receive full compensation you may be looking at potential wage theft. Similarly, if you resigned from an employer more than 20 days ago and you have not received your final paycheck, you may be looking at potential wage theft. State and federal laws prohibit various forms of wage theft.

If you have questions about wage theft, a final paycheck, or other employment law questions, please contact us today. We are happy to answer questions and assess if we can help with your situation.

What Does “Protected Status” Mean in Discrimination Law?

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Have you suffered discrimination at your workplace? Are you wondering if there is anything you can do about it? How can you protect yourself? What laws are set in place to protect employees like you?

Unfortunately, these are all questions that some employees may encounter during their employment. This may involve confusing legal terminology, laws and policies that can be difficult to understand, especially for someone who may be experiencing discrimination at the time. The good news is that there are laws set in place to protect employees from being discriminated against by an employer.

The Minnesota Human Rights Act (MHRA) and Title VII of the Civil Rights Act protect workers from discrimination. The laws refer to protected classes. It is illegal to discriminate against an employee because of their membership in a protected class. When it comes to employment discrimination, protected classes refer to a person’s race, color, creed, religion, national origin, sex, marital status, disability, public assistance, age, sexual orientation, gender identity, familial status, and local human rights commission activity.

This means that employers cannot discriminate against employees, or treat them differently, based on any of these protected classes. Now, discrimination can look different for everyone, and it can involve various types of negative treatment against someone, so it is important to speak to an attorney that specializes in these types of cases. The law in this area is complicated and changes frequently.

If you feel you have experienced discrimination or retaliation at work because you belong to a protected class, our attorneys at Kitzer Rochel are here to help. Please contact us today. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

The Supreme Court Weighs in on COVID-19 Vaccines: What It Means for Employees

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What is the vaccine mandate?  

  • In September 2021, President Biden issued an executive order requiring federal employees and contractors to be fully vaccinated against COVID-19 (the Coronavirus).  
  • In November 2021, President Biden issued two additional executive orders regarding the COVID-19 pandemic and vaccine mandates that are were reviewed by the Supreme Court.  
    • The first requires employers with 100+ employees to mandate vaccines (or weekly testing for those who do not want to be vaccinated).  
    • The second requires that healthcare facilities which receive federal funding implement a similar vaccine policy.  
  • In January 2022, the Supreme Court struck down the first of the November 2021 rules. It held that it is unconstitutional to require employers to mandate vaccines and weekly testing.  

So, what does all of this mean for me? 

  • If you are a federal employee, you must be fully vaccinated. 
  • If you are employed by a healthcare facility that receives funds through Medicare or Medicaid, you must be fully vaccinated or undergo weekly testing for COVID-19. 

Can my employer mandate vaccines, testing, and masks if it chooses?  

  • Yes. The Supreme Court did not ban employers from choosing to require that employees be vaccinated or undergo testing. It only prevented the government from mandating that employers implement this policy.  
  • However, if your employer is a healthcare facility that receives federal funding (through Medicaid or Medicare), then it is still required to mandate vaccines and weekly testing.  

My employer is a healthcare facility that receives federal funding and I think it is violating the vaccine mandate. Can I be punished for filing a complaint? 

  • No. Many statutes prohibit employers from retaliating against employees who report legal violations or participate in investigations of alleged violations.  
  • Employees can and should report violations of workplace safety laws, including federal and state OSHA regulations related to COVID-19.  

 

John Oliver Casts Light on Union Busting

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Union busting is a widespread problem throughout the U.S. workforce. John Oliver dedicated a segment laying out how employers engage in–and far too often get away with–union busting. See the video here.

If you have questions about union rights, or think your employer may be pressuring you to avoid pro-union activities, contact Kitzer Rochel today.

 

 

Phillip Kitzer Presents to Minnesota NELA on Key Employment Cases and Important Legislation for Employee Advocates

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On November 9, 2021, Phillip Kitzer presented “Key Cases and Important Legislation Employee Advocates Should Know” to the Minnesota Chapter of the National Employment Lawyers’ Association (MN-NELA). Mr. Kitzer co-presented with Kaarin Nelson Schaffer, partner of Conrad Nelson Schaffer. MN-NELA is a professional organization of lawyers dedicated to advancing the rights of workers by providing information, education, and advocacy on behalf of employees. Mr. Kitzer and Ms. Nelson Schaffer provided detailed insights into the most recent and seminal cases in Minnesota employment law, and discussed recent statutory changes impacting employees in Minnesota.

If you feel you have experienced discrimination or retaliation at work, our attorneys at Kitzer Rochel are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

Am I Protected If I Blow the Whistle at Work?

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The Minnesota Whistleblower Act (MWA) protects employees who “blow the whistle,” in their workplaces. This means employees who refuse to engage in illegal activity at work or who report illegal activity. To prove a whistleblower claim in Minnesota, the employee must show (1) that they engaged in statutorily protected conduct; (2) that they suffered an adverse employment action; and (3) a causal connection between the two.[1]

What activity is protected by the MWA?

Employees who report a violation, suspected violation, or planned violation of a state or federal law or rule to an employer or government official are protected under the MWA.[2] Employees who are requested by a public body or office to participate in an investigation, hearing, or inquiry are also protected.[3] The MWA also protects employees who refuse an order from their employer that they believe in good faith to be unlawful if they inform their employer that that is why they are refusing the order.[4] The MWA also provides protections for employees who report substandard quality of health care services in a health care facility, provider, or organization.[5] Public employees are protected if they communicate the findings of studies or reports that they believe to be truthful and accurate.[6] Similarly, state government employees who communicate information relating to state services that they believe to be truthful and accurate to legislators or legislative auditors or constitutional officers are protected by the MWA.[7]

In 2013 the Minnesota legislature amended the MWA to include additional, robust protections for employees who report unlawful activities.[8] Specifically, the legislature amended the definition of “good faith” report to mean any report of suspected violations of the law as long as the reports were neither knowingly false nor in reckless disregard of the truth.[9] Importantly, the 2013 MWA amendments also added protection for employees reporting common law violations from retaliatory discharge.

What is an adverse employment action?

A basic example of adverse employment action is termination of employment. However, the MWA prohibits any form of “penalizing” an employee, which includes anything that would dissuade a worker from reporting illegal conduct. This includes harassment, reducing pay, reducing hours, or other forms of penalizing a worker.

Constructive discharge is also an adverse employment action. This occurs “when an employer deliberately renders the employee’s working conditions intolerable, thereby forcing her to quit.”[10] Whether the working conditions are intolerable is determined using an objective standard, considering whether a reasonable person in the same situation would find the conditions intolerable.[11] Further, if an employee resigns because they think there is no possibility of fair treatment by their employer, this can constitute constructive discharge.[12] This might occur if an employee reports illegal conduct or refuses to break the law, and their employer then makes working conditions intolerable for that employee. Subjecting an employee to a hostile environment can also be considered an adverse employment action.[13]

How do I show a causal connection?

This simply means evidence that an employee was treated badly, or penalized, because the worker reported violations of law (or refused to participate in them). This evidence takes many forms. Statements from a manager, or treating workers differently are examples of proving retaliation. Courts have also found that close proximity between protected conduct and adverse employment action is compelling evidence of a causal connection.[14] That means that if the adverse employment action occurred shortly after the protected conduct, there is likely a causal connection between the two. For example, if an employee reports a suspected violation of the law to their employer and they are fired the next day, it is likely that the two events are related, or causally connected.

What should I do if I my employer terminated my employment or retaliated against me for reporting violations or refusing to engage in illegal activity?

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.

_____

[1] Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995).

[2] Minn. Stat. § 181.932, subd. 1(1).

[3] Minn. Stat. § 181.932, subd. 1(2).

[4] Minn. Stat. § 181.932, subd. 1(3).

[5] Minn. Stat. § 181.932, subd. 1(4).

[6] Minn. Stat. § 181.932, subd. 1(5).

[7] Minn. Stat. § 181.932, subd. 1(6).

[8] Minn. Stat.  § 181.931

[9] Minn. Stat. § 181.931, subd. 4.

[10] Tatum v. Ark. Dep’t. of Health, 411 F.3d 955, 960 (8th Cir. 2005).

[11] Gartman v. Gencorp, Inc., 120 F.3d 127, 130 (8th Cir. 1997).

[12] Dixon v. Mount Olivet Careview Home, Civ. 09-1099, 2010 WL 3733936 *8 (D. Minn. Sept. 17, 2010)

[13] Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998); Frieler v. Carlson Mktg. Grp., 751 N.W.2d 558, 570 (Minn. 2008).

[14] See, e.g., Dietrich, 536 N.W.2d at 327 (citing Hubbard v. U.P.I., Inc., 330 N.W.2d 428, 444 (Minn. 1983) (holding that causal connection requirement may be satisfied by the temporal proximity between protected conduct and adverse employment action)).

Does My Employer Have to Accommodate My Long-Haul COVID Symptoms?

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COVID-19 has presented many questions for employers and employees. One set of questions surrounds “long COVID,” or “long-haul COVID.”

President Biden announced that the long-term effects of COVID-19 infection can in fact be considered a disability under the Americans with Disabilities Act (ADA). This likely would apply under Minnesota’s Human Rights Act (MHRA) as well.

This means that employees who were infected with COVID-19 and still suffer from symptoms such as respiratory problems, brain fog, chronic pain, and fatigue that rise to the level of a disability are protected under federal law. Such symptoms rise to the level of a disability if they substantially limit a major life activity such as work. Employees with a disability are entitled to reasonable accommodations in the workplace.

If you have questions about ADA accommodations, or if your employer is refusing to provide accommodations or discriminating against you because of a disability, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

Can My Employer Fire Me if I Fail a Drug Test?

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Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) governs drug testing for employees. Employers may not require drug or alcohol testing unless such testing is completed under a written drug and alcohol testing policy that contains certain information required by law.[1] The testing must also be completed only by a qualified laboratory.[2]

If your employer requires you to take an initial drug test and you test positive, DATWA prohibits your employer from firing you without first providing you with the opportunity to participate in counseling or rehabilitation.[3] Your employer is also required to provide you with written documentation of your test results.[4]

If your employer has not followed these legal requirements, or you have questions about drug testing at work, 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. § 181.951, subd. 1.

[2] Minn. Stat. § 181.953, subd. 1.

[3] Minn. Stat. § 181.953, subd. 10(b)(1); Hanson v. City of Hawley, No. A05-1940, WL 1148125, at *1 (Minn. Ct. App. May 2, 2006).

[4] Minn. Stat. § 181.953, subd. 7.

Can My Employer Fire Me for Reporting Violations of Law?

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The Minnesota Whistleblower Act (MWA) protects employees who report illegal activity, or “blow the whistle,” at work. The MWA prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee in relation to compensation or the terms, conditions, location, or privileges of employment because an employee reported illegal activity.[1]

You are protected under the MWA if you make a good faith report of a violation, suspected violation, or planned violation of any state or federal law, common law, or rule.[2] These categories are very broad and protect a wide range of conduct. You are protected whether you make this report to your employer or any governmental body or law enforcement official.[3] In addition and separately, you have the same protections if a public body or office requests that you participate in an investigation, hearing, or inquiry.[4]

Whistleblower protections include, for example, reporting violations relating to COVID-19, state or federal workplace safety rules, criminal violations, securities laws, and virtually any other type of legal rule, law or regulation.

If you have questions about whistleblower rights contact us. Or if believe that your employer has terminated your employment or treated you unfairly after you reported illegal activity, contact us. Our experienced Minnesota employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

 

[1] Minn. Stat. § 181.932, subd. 1(3).

[2] Minn. Stat. § 181.932, subd. 1(1).

[3] Minn. Stat. § 181.932, subd. 1(1).

[4] Minn. Stat. § 181.932, subd. 1(2).

Can I Request My Personnel Record from My Employer?

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Under Minnesota law, if an employee makes a written request to their employer, the employer must provide the employee with the opportunity to review their personnel record.[1] However, the employer is not required to provide an opportunity for the employee to review their personnel record if the employee has reviewed their file within the previous six months.[2] After an employee no longer works for the employer, the employee may review their personnel record once per year for as long as the record is kept.[3]

For current employees, if an employee makes a written request, the employer must allow the employee to view the file within seven days for records kept in Minnesota, or fourteen days for records kept outside of Minnesota.[4] For current employees, the personnel record (or an accurate copy) must be made available to the employee during the employer’s normal operating hours.[5] The employer is allowed to be present (or have a representative present) during review of the personnel file.[6] After review, the employee can make a written request for a copy of the record, and the employer is required to provide a copy.[7]

For former employees, the employer must provide a copy once the former employee makes a written request, but need not allow review of the personnel file itself.[8] The employer is not permitted to charge a copy fee for the copy of the personnel file.[9] The employer must provide a copy of the file to the employee within seven days (for files kept in Minnesota) or fourteen days (for files kept outside the state).

If you have questions about this process, contact us. Our experienced employment law attorneys would be happy to discuss the process and help you determine your next steps.

[1] Minn. Stat. § 181.961, subd. 1.

[2] Minn. Stat. § 181.961, subd. 1.

[3] Minn. Stat. § 181.961, subd. 1.

[4] Minn. Stat. § 181.961, subd. 2(a).

[5] Minn. Stat. § 181.961, subd. 2(b).

[6] Minn. Stat. § 181.961, subd. 2(b).

[7] Minn. Stat. § 181.961, subd. 2(b).

[8] Minn. Stat. § 181.961, subd. 2(c).

[9] Minn. Stat. § 181.961, subd. 2(d).

[10] Minn. Stat. § 181.961, subd. 3.