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.
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.
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.
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[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)).
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.
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.
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).
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.
Brian Rochel has been selected to serve as a Board member on the Minnesota Chapter of the National Employment Lawyers’ Association (MN-NELA). MN-NELA is a highly-respected organization of lawyers who are dedicated to advancing the rights of workers by providing information, education, and advocacy on behalf of employees. MN-NELA works to advance employee rights by influencing judicial lawmaking, legislative lawmaking, and educating the bench, bar and public on issues that affect workers’ rights.
MN-NELA has had a profound impact in the rights of employees over the past several decades. Its major achievements include amicus briefing at the Minnesota Supreme Court, helping draft impact legislation, and facilitating collaboration across hundreds of lawyers and law firms who represent employees and workers across the state.
Brian has been a member of MN-NELA since 2010, served on the Board from 2014-2017, and is proud to continue serving the organization.
On Thursday, September 9, 2021, President Biden issued an executive order with new vaccine mandates covering millions of employees. Here are several ways the new regulations impact employees.
Who Is Covered?
Some estimates are that this will impact more than 80 million workers in the U.S. and at least 1.4 million workers in Minnesota.
What Is Required?
What If My Employer Does Not Require Vaccination?
What If I Choose Not to Get Vaccinated or Be Tested?
Employees may request leave under the Family and Medical Leave Act (FMLA).
To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months and have 1,250 hours of service in the previous 12 months. In addition, the employer must have at least 50 employees employed within 75 miles of the location the employee works at.
An employee may request FMLA for one of the following reasons:
After an employee confirms that they meet the eligibility requirements and that they have a reason that entitles such employee to receive FMLA benefits, but their employer has denied their FMLA request, an employee may file a complaint with the U.S. Department of Labor. An employee may also file a private lawsuit against their employer.
An employer cannot interfere with, restrain, or deny any employee of any right provided under FMLA. It is also unlawful for any employer to discriminate against an employee, penalize an employee or terminate an employee for submitting an FMLA request or for using their FMLA benefits.
Employees of an airline flight crew, military members and/or military families may be entitled to additional benefits and should consult with an employment attorney if they have more specific questions.
If you feel you have experienced discrimination or retaliation at work related to FMLA, our attorneys at Kitzer Rochel are here to help. Contact us today. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.
