How Do I Know If I Can Request FMLA Leave?

/in ,

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:

  • Incapacity due to pregnancy, prenatal medical care or childbirth;
  • To care for the employee’s child after birth, or placement for adoption or foster care;
  • To care for the employee’s spouse son, daughter or parent who has a serious health condition; or
  • If the employee has a serious health condition that makes the employee unable to perform their job duties.

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.

Can my Employer Force Me to Break the Law?

/in

The Minnesota Whistleblower Act (MWA) protects employees who report illegal activity, or “blow the whistle,” at work. The MWA is also designed to deter employers from retaliating against employees who follow the law. The MWA prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee because an employee refused to break the law, or reported a violation of law.

For protection under the MWA, the employee must have an objective basis in fact to believe that an employer’s order violates a state law or federal law, rule, or regulation. An employee should also inform their employer that that they are refusing the employer’s order because they believe that it violates the law.

If you believe that your employer has terminated your employment or treated you differently after you refused to break the law, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

What is a reasonable accommodation for a disability and how can I request it from my employer?

/in

Working with a disability does not have to be stressful. The Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) prohibit employment discrimination against qualified individuals with disabilities. A qualified individual with a disability is someone who fulfills what the position is requiring of an applicant, for example: skill set, experience, education, and any other job-related requirement. It is someone who can perform the basic duties the position entails either with or without reasonable accommodation/s.

All government agencies, and most employers, are required by law to provide reasonable accommodations to both qualified applicants and employees. The only time they would be unable to provide reasonable accommodation is if doing so would pose a direct threat or cause an undue hardship. Otherwise, employers must provide reasonable accommodations (adjustment or alteration), to provide applicants/employees an equal opportunity to compete for a job, equal access to benefits and privileges of employment, and/or to be able to perform the essential functions of the job.

Reasonable accommodations may look like the following:

  • Moving to a different office space;
  • Granting breaks or providing leave;
  • Providing accessible parking;
  • Providing telework or working remotely (including working from home);
  • Providing materials in alternative formats like large print or Braille; or
  • Changing when or how job duties are performed.

Under state and federal laws, individuals with disabilities have a right to request reasonable accommodations that will allow individuals to perform all the essential functions of the job. A job should not have to be burdensome to an individual with disabilities and reasonable accommodations should be request if needed. An employer is not allowed to retaliate against an employee who asks for reasonable accommodation, or who receives an accommodation.

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

Minnesota Supreme Court Holds that Employment Handbooks May Create Contractual Rights, Even When They Claim Not To

/in

Today, the Minnesota Supreme Court ruled in favor of employees. In an important ruling, the Court held that employers who use blanket language stating that an employee handbook is “not a contract” do not necessarily prevent employees from bringing valid claims for breaching a contract. The case, Donald Hall v. City of Plainview, reiterated prior cases holding that employee handbooks can, in certain cases, be legally enforceable.

In Hall, the City of Plainview promised to pay its employees accrued paid time off (PTO) upon separation from employment. But the City refused to pay Hall his PTO upon his separation. The City claimed that a blanket statement in its handbook stating that no provision was intended to create a contract was enough for it to avoid responsibility for paying the PTO. But the problem, the Court held, was that the company promised to pay the PTO in one part of the handbook, while also vaguely and generally claiming that it did not have to follow any of the promises it made in the handbook. The Court held that such duplicitous language is ambiguous and that, as a result, a jury had to decide what the contract actually meant.

The takeaway for Minnesota employees is that when even if an employee handbook contains a statement that it does not create a contract, courts may still find that the terms of the contract are enforceable. It is a good idea to consult with an experienced employment attorney in these situations.

Phillip Kitzer and Brian Rochel of Kitzer & Rochel, PLLP participated in the case on behalf of Minnesota NELA, who appeared as amicus curiae arguing in favor of employees.

If you would like to learn more, or if you have any employment law question, contact Kitzer & Rochel today.

Phillip Kitzer Presents on COVID-19 Employment Issues to Minnesota Lawyers

/in ,

On December 8, 2020, Phillip Kitzer presented “COVID-19: A Plaintiffs’ Employment Attorney’s Perspective” to the Minnesota chapter of the National Employment Lawyers Association along with Elizabeth Binczik, attorney at Fabian May & Anderson, PLLP.

The program covered a variety of employment issues that arise for Minnesota employees during the COVID-19 pandemic. Whether working from home under a stay-at-home order or caring for a child when school is closed, the pandemic has affected nearly every employee in the state. Phillip and Elizabeth discussed various laws that apply to employers during this time through programs such as the Families First Coronavirus Response Act (“FFCRA”), but also how employer bias and discrimination related to COVID-19 can violate employee protection laws.

If you feel you have experienced discrimination or retaliation at work related to COVID-19, our attorneys at Kitzer Rochel are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

Brian Rochel to Present on COVID-19 Employment Law Issues

/in

On October 22, 2020, Brian Rochel will present “Employment Trends from the COVID-19 Battlefield,” along with Teresa Thompson of Fredrikson & Byron. Brian and Teresa will share their views as an employee-side lawyer and employer-side lawyer, respectively, on recent and upcoming topics related to COVID-19.

Click here to learn more and to register for the Webinar.

Brian Rochel Interviewed Regarding COVID-19 and Employment Law

/in ,

On July 6, 2020, TKKR partner Brian Rochel was featured in an interview by Minnesota Public Radio about current legal protections employees have in the context of the COVID-19 pandemic. You can read the article here.

Brian discussed the real fear many employees have that if they raise concerns related to COVID-19, they will be retaliated against, by being fired and forced to search for employment during the current difficult economic time. He also discussed how the legal protections related to COVID-19 are uncharted territory for Minnesota courts and the importance of discussing any potential issues with an employment lawyer.

Under Minnesota Governor Tim Walz’s Peacetime Emergency Executive Order 20-54, employees are, among other things, protected against retaliation for reporting COVID-19 workplace concerns or refusing to work in conditions that they, in good faith, believe could potentially expose them to COVID-19.

All of these protections contain important caveats, so if you have questions about Executive Order 20-54, or COVID-19 at work, you should contact an experienced employment lawyer. If you are an employee who has experienced difficult circumstances with your employer related to COVID-19, we are here to help. Please contact Teske, Katz, Kitzer, and Rochel, PLLP. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower related issues in the workplace.

Governor Walz’s Recent COVID-19 Order Gives Employees Important Rights

/in , , , ,

On May 13, 2020, Minnesota Governor Tim Walz issued Executive Order 20-54, in response to the COVID-19 pandemic crisis. Among other things, the Governor’s executive order provides rights to Minnesota employees that all workers should be aware of.

First, the executive order prohibits employers from discriminating or retaliating against employees who ask their employers questions or expresses concerns about COVID-19 (the Coronavirus), or their health and safety regarding the virus outbreak.

Second, the executive order generally prohibits employers from discriminating or retaliating against employees who wear gloves, cloth, eye protection, or other protective gear in the course of their work.

Third, the executive order gives employees the right to refuse to work under conditions that they, in good faith, reasonably believe pose an imminent danger of death or serious bodily harm.

Fourth, the executive order gives employees the right to request the Minnesota Department of Labor and Industry (“DLI”) conduct an inspection of their workplace if they suspect a COVID-19 threat to health and/or safety is present.

Lastly, the executive order gives employees the right to seek reasonable accommodations related to COVID-19, including the ability to work from home, if possible.

All of these protections contain important caveats, so if you have questions about Executive Order 20-54, or COVID-19 at work, you should contact an experienced employment lawyer.

If you are an employee who has experienced difficult circumstances with your employer related to COVID-19, we are here to help. Please contact Teske, Katz, Kitzer, and Rochel, PLLP. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower related issues in the workplace.

I’ve just been Fired, What do I do Now? 10 Steps to Approach Termination

/in

Your boss calls you into a meeting with human resources. Suddenly, you find yourself without a job and without a clue what the next step will be. Situations like this are difficult, but here are some steps to take to make sure you are able to exercise your rights and confidently move toward your next opportunity.

  1. During the termination meeting, ask why you are being terminated. Listen to anything that is said, particularly regarding your performance, company needs (such as a layoff, reduction-in-force or restructuring), concerns others raised about you, or anything else they have to say. Your employer should be able to articulate the reasons for the decision to terminate your employment.
  2. Request a written, truthful reason for your termination. According to Minnesota law, an employee who has been involuntarily terminated may request that her or his employer provide a written reason within 10 working days of the request. Stat. § 181.933. However, you must request the reason in writing, and within 15 days of your termination. You should quickly make this written request or talk with an attorney about doing so.
  3. Request a copy of your personnel record. According to Minnesota law, upon separation from employment, any employee is entitled to a full copy of her or his personnel record, but only if she or he requests a copy in writing. Minn. Stat. § 181.961. Your employer is not allowed to charge you a fee for the personnel record. A copy of your personnel record may include evidence regarding the decision to terminate your employment, so you should request this quickly even if you choose not to hire an attorney.
  4. Collect any documents that may have any relation to your termination. This includes, for example, performance evaluations, emails, doctor’s notes, notes from managers/customers, or personal notes you may have taken. You must be careful to not take trade secret information or company property, however. Such information is usually defined by documents that you may have signed. If you have questions about what constitutes confidential or proprietary information, you should contact an attorney.
  5. If possible, ask your coworkers what they think about the reasons you were given for termination. Ask whether they agree with the decision, and what they thought about your performance and/or conduct. It may be helpful to know whether they are aware of anyone who was terminated around the same time and/or for similar reasons. You can also ask whether they were aware of any metrics used in the decision to terminate your employment.
  6. Contact an employment attorney. If you’ve been terminated, you may have legal rights, but you must contact an attorney as soon as possible to avoid missing important time limitations that could result in you losing any rights you may have.
  7. Review any contracts or agreements you may have related to your employment. When you started your position, you may have signed one or more forms that you do not recall in detail; this is common. You should review those documents in detail and should most likely have an attorney review them as well to advise you of your rights and options.
  8. Be careful about what you post on social media. Do not defame or speak negatively about your employer on social media following your termination (or at any time). There is no upside to trashing a former employer. It could make you look bad to future employers, or could be raised in a lawsuit to distract from your strong legal claims.
  9. Consider filing for unemployment benefits. If you are terminated, you can apply for unemployment benefits to determine whether you are eligible. There is a helpful checklist as well as an online tool to apply for benefits which can be found on the Minnesota Unemployment Insurance website, uimn.org.
  10. Try to find a new job and keep detailed records of your job search. In order to seek unemployment benefits, you are required to track your job-search efforts. If you bring a wrongful termination lawsuit, your former employer may try to prove that you did not try hard enough to find replacement income, raising a “defense” that you are not entitled to all of your lost income. Overall, you should diligently try to find a new job, and keep a very detailed log of your efforts in doing so.

Being terminated is difficult and personal, we understand that. But rest assured it is not the end of the road. It does not define you as a person and it should not dictate your career path. We are here to help you determine your rights and remedies moving forward. If you have any questions, please contact an experienced employment lawyer today.

SCOTUS Grants Writ of Certiorari for Three LGBT Employment Discrimination Cases

/in

On April 22, 2019, the Supreme Court granted petitions for writs of certiorari in three LGBT employment cases. Each of the three cases addresses whether Title VII of the Civil Rights Act of 1964 offers protection against discrimination in employment on the basis of sexual orientation or gender identity.

In Bostock v. Clayton County, Georgia, the Plaintiff, Gerald Lynn Bostock, claims his sexual orientation as a gay man was the reason for his termination from Clayton County as a Child Welfare Services Coordinator. The District Court ruled that he had no viable claim because Title VII does not prohibit discrimination on the basis of sexual orientation. The Eleventh Circuit established the precedent that discrimination on the basis of sexual orientation is not a form of sex discrimination protected by Title VII.

In contrast, the Second Circuit Court of Appeals held in Zarda v. Altitude Express, Inc., that sexual orientation is protected under Title VII, because the Supreme Court has ruled previously that gender stereotyping violates the statute. The Second Circuit held discrimination based on sexual orientation was an “actionable subset of sex discrimination” because you cannot address sexual orientation without consideration of the individual’s gender and the related stereotypes.

In R.G. & G.R. Harris Funeral Homes v. EEOC, et al., the Sixth Circuit also held that Title VII protects employees who are transgender. Employee Aimee Stephens was terminated when she informed her coworkers that “she was undergoing a gender transition from male to female and intended to dress in appropriate business attire to work as a woman.” Two weeks later she was terminated because the funeral home owner thought he would be “violating God’s commands” by allowing Stephens to dress in women’s clothing. The federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens.