Phillip Kitzer Presents on Panel at Minnesota FBA Federal Practice Seminar

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On April 27, 2018, Phillip Kitzer joined co-panelists Judge Jeffrey Keyes and Judge Hildy Bowbeeron a panel titled “Representing Clients in Mediation” at the Minnesota chapter of the Federal Bar Association’s (FBA) 44th Annual Federal Practice Seminar. Moderated by Antone Melton-Meaux, the panel discussed various techniques and considerations in mediating cases and representing clients in mediation.

The Federal Practice Seminar is an annual event hosted by the Minnesota chapter of the Federal Bar Association and features wide-ranging topics for legal practitioners.

 

 

Ideas for Negotiating a Job Offer

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If you do not typically negotiate the terms of your job offer, you may want to consider doing so. There are many different aspects of a typical employment offer that you may be able to negotiate. If you do not, you may be selling yourself short.

Perhaps the biggest factor in negotiating an employment agreement is your salary or compensation for a job. During the initial interview, an employer will frequently ask what salary level you are seeking. This is the first misstep in most initial employment negotiations. You are not obligated to provide your prior salary history and doing so may hurt your negotiating position. At the same time, it is unwise to be rude or curt in denying to share salary information if you are trying to persuade an employer to hire you.

Here are some tips when facing this question:

  • Redirect: Ask what salary range the employer is offering (or what range a recruiter believes is realistic). Or say, “I am looking for roles in a range between $__ and $__.” Focus on what you are looking for, not what you earned in the past.
  • Ask for more information: Respond by saying that you need more information about the specific role or job you are seeking before you can comfortably answer what salary range you are seeking.
  • Directly address the question: You can politely say that you are not comfortable sharing that information or that it is private. In fact, sharing prior salary history can lead to direct or indirect discrimination. For instance, it well documented that women and minorities are generally paid less than men and non-minorities. Allowing companies to dictate pay based on previous salaries perpetuates these discriminatory norms. In some circumstances, seeking prior pay information may even violate the law. You should contact an employment attorney if you have questions about that.

At some point, if things move forward, you will be offered a position with a salary or a salary range. Of course, you will want to negotiate this term to get the best salary you can. Frequently, though, there is not much room beyond the initial salary offer unless there are unique circumstances (i.e. you have a competitive job offer, etc.).

Once you have been offered a job and settled on a salary, you can still negotiate several terms beyond salary. Many people overlook this potentially lucrative opportunity. Here are some terms to consider negotiating:

Sign-on bonus: these are more common than negotiating a salary increase, and are frequently agreed-to when job candidates push for them. This can make a significant financial difference when comparing competing job offers.

  • Vacation: negotiating one or even many additional vacation days per year is a very common term that employers are willing to give.
  • Stock options: Some companies offer stock options as part of an employment agreement. These can be very valuable depending on the financial health and future of the business.
  • Flexibility: working from home (even a few days a year or something like that), variable work hours, limited travel, etc.
  • Dues/fees: if you are obligated to maintain membership dues or association fees, negotiate your employer covering these. We have even seen employers pay for memberships at social or health clubs for the career networking value that the company receives. Similarly, you can negotiate paying conference attendance fees or travel costs. Be specific about these terms up front rather than waiting until after you are hired.
  • Tuition reimbursement: This is another common term for employees looking to advance their career—it can be a win-win for the employer and employee. But be very careful about provisions that require you to pay back any reimbursement amount if you leave the company.
  • Non-monetary items: Aside from terms that cost a company money, you can get creative about other elements of the job that help you advance your career trajectory. For instance, your job title or the number of employees that report to you may be items you can negotiate. This can make a significant difference in promotional opportunities down the road and can help you gain valuable experience.

You should also consider negotiating severance or separation terms as part of your initial job offer or employment agreement. We frequently have clients who quit, are laid off or are terminated and attempt to negotiate severance pay. In almost all cases, employers’ lawyers argue that those terms should have been negotiated at the outset of the employment relationship. They are right. As an employee, you are much better off having a contractual right to severance pay when you are let go than if you do not.

Many employers today require some form of non-compete agreement, non-solicitation agreement, or other restriction on your ability to work upon departing from the company. You can use that to negotiate some form of separation pay in exchange for agreeing to these restrictions. For instance, if an employer requires you to sign a one year non-compete, you can suggest that they include one year of severance pay if you are terminated under certain circumstances. This helps protect you in the event that you are suddenly fired and then bound by a restrictive covenant that limits you in finding a new job.

***The law on non-competes and other restrictive covenants is complicated and changes regularly. The same is true for law governing employment agreements. There are many factors involved in deciding whether to negotiate an employment agreement, and you should seek legal advice from an experienced employment lawyer before signing (or even negotiating) such an agreement. It is important to fully understand what you are agreeing to before you agree to anything.

Phillip Kitzer Presents on Transgender Rights in the Workplace at 8th Circuit NELA’s Biennial Convention

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On April 6, 2018, Phillip Kitzer participated on a panel at the 8th Circuit chapter of the National Employment Lawyers Association’s (NELA) biennial convention in Minneapolis, Minnesota on transgender rights in the workplace. Along with co-panelists Joni Thome, Ferne Wolf, and moderator Jill Silverstein, the panel discussed trends in the law, litigation strategies, and best practices to identify issues and protect the rights of transgender clients. The Eighth Circuit NELA Conference is a two-day conference designed for attorneys and professionals who represent employees and features presentations by leading plaintiffs’ lawyers in the Eighth Circuit.

Teske Katz Kitzer & Rochel’s attorneys regularly represent employees in employment disputes. If you have questions about employment law, or would like to learn more about your rights in the workplace, contact us today.

Phillip Kitzer Named MSBA Board Certified Labor and Employment Law Specialist

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On March 6, 2018, the Minnesota State Bar Association (MSBA) announced Phillip Kitzer as a new Board Certified Labor and Employment Law Specialist. The designation was earned after Mr. Kitzer completed a rigorous approval process, including an examination, peer review, and documented experience. According to the MSBA, certified attorneys “demonstrate superior knowledge, skill, and integrity in their specified fields.”  Only 3% of licensed attorneys statewide have earned the designation.

The MSBA has been accredited as an independent professional organization for certifying attorneys in several areas of law, including Labor and Employment, and the certification program is approved by the State Board of Legal Certification.

 

What to do if you experience sexual harassment at work

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By now, nearly everyone has heard of the #metoo movement, an effort to fight back against the widespread prevalence of sexual assault and harassment, especially in the workplace. The movement has highlighted the reality that sexual harassment is very common at work. The laws prohibiting sexual harassment are complicated and, unfortunately, there are aspects that hurt victims of sex harassment. For instance, a recent article in the Star Tribune discusses the many hurdles that victims of sexual harassment can face in the courts.

Still, nobody should be forced to endure sexual harassment at work. The more employees talk about sexual harassment and fight back against it, the more we can all do together to help put an end to it.

Here are some tips for what to do if you are experiencing sexual harassment at work:

  • Report it. This is not everyone’s immediate response. Many victims who contact us fear reporting harassment for several reasons. Sometimes the harasser is their boss or a boss’s friend. Or, sometimes a victim believes that reporting harassment to human resources will result in more harassment or retaliation. These concerns are valid and confirmed by thousands of cases across the country. Indeed, we routinely represent victims who report harassment and experience retaliation. Still, the law presumes that employees who experience sexual harassment would, and should, report it. If you report sexual harassment, your employer cannot retaliate against you for doing so. Reporting harassment gives your employer the opportunity to correct the illegal behavior. If it does so, that is good. But, if it fails to do so—or worse—punishes you for reporting it, then it will be legally liable.
  • Do not quit. Many employees who experience sexual harassment want to quit rather than face the unbearable conditions at work. Being forced to work with a harasser, or in a workplace where harassment is condoned is awful. The problem is, if you quit, an employer may have no liability for the harassment or retaliation they caused. The law gives employers several defenses for harassment and retaliation claims. This is a complicated area of law, but, taken overall, the law frequently rewards companies when an employee quits his or her job. Employers can claim that they did not take any action against an employee who quits. Or, an employer may argue that an employee who quits caused their own harm or “damages,” meaning that an employee cannot sue in court to recover for the illegal conduct.
  • Do not confront your harasser. While the law can have hurdles for victims of harassment, you are generally not required to directly confront a harasser. You should follow your employer’s policy to report the harassment. If there is no policy, then report it to human resources or to another boss.
  • Do something—don’t let the harassment get worse. This might seem obvious, but many victims of sexual harassment avoid the problem, minimize the behavior, or just hope that it will stop or go away. Federal law and Minnesota law are clear: No employee should have to put up with sexual harassment. Report harassment right away, and, when in doubt, contact an experienced employment attorney about your options. In our experience, if an employee hopes that harassment will stop but does not do anything about it, the situation gets worse, not better.
  • If you see someone else experiencing harassment, report it. The law also protects employees who report that a coworker is being sexually harassed. Of course, you want to be mindful of your coworker’s wellbeing. But employees should not be forced to endure a workplace where sexual harassment is allowed at all.

These are only some of the many factors to think about if you or someone you know is experiencing sexual harassment. It bears repeating that employment law, especially regarding sexual harassment, is complicated. You should always seek legal advice as soon as you suspect you or another employee are experiencing sexual harassment.

At Teske, Katz, Kitzer & Rochel, we fight for employees everyday, and hope that the current spotlight on sexual harassment helps put an end to a pervasive and disgusting problem facing too many workers today. Contact us to learn more.

Favorable Settlement Changes City of Minneapolis Policies for Disabled Workers

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On December 22, 2017, Teske Katz Kitzer & Rochel finalized a settlement agreement in Stewart, et al. v. The City of Minneapolis, an employment discrimination class action lawsuit. The agreement included significant policy changes that benefit City of Minneapolis employees who are or become disabled.

Laurence Stewart, the named plaintiff, is a former employee of Minneapolis in its Public Works Department. Stewart sought classwide relief for himself and all other similar employees. The Complaint alleged that the City’s return to work policy violated the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) because it failed to provide reasonable accommodation for disabled workers.

The settlement agreement provides that the City will now conduct multiple assessments for reasonable accommodations for all employees who are eligible for its Return to Work Job Bank.

A full press release with details of the policy changes and copy of the Amended Complaint are available here:

Here is a previous post regarding the Stewart v. City of Minneapolis litigation.

Mr. Stewart is represented by Brian Rochel and Marisa Katz of Teske Katz Kitzer & Rochel, PLLP. Teske Katz Kitzer & Rochel is an employment and class action law firm representing employees in Minnesota and across the country.

For more information, or if you have questions about this lawsuit, contact Brian Rochel at (612) 767-0520 or at rochel@kitzerrochel.com.

Teske Katz Kitzer & Rochel Attorney Phillip Kitzer Moderates Panel at FBA Labor & Employment Biennial Conference

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Attorney Phillip Kitzer recently served on a panel at the FBA Labor and Employment Biennial Conference in San Antonio on a topic titled, “How to Work with In-House Employment Counsel – Tips for Both Plaintiff and Defense.” Additional panelists included Brittany Mayer-Schuler, Vice President of Legal Affairs for Elior North America, Melissa M. Heidman, Vice President & Associate General Counsel, Noodles & Company, and Matthew Revord, Senior Vice President, Chief Legal Officer, General Counsel, and Secretary, Potbelly Sandwich Works. The panel discussed tips for plaintiffs lawyers on effectively engaging with the company, and tips for defense lawyers on retaining business, budgeting, communication, and litigation styles. The FBA Labor and Employment Biennial Conference is held every other year and features nationally recognized speakers in labor and employment law.

EEOC Reaches Significant Settlement in Prayer Accommodation Case

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On August 6, 2017, the EEOC reached a significant settlement in a case against Electrolux. The case involved claims by a group of Muslim employees who were denied religious accommodations.

The employees had asked the company to allow them to break their fast shortly after sunset in accordance with the observation of Ramadan, the Islamic holiday that involves fasting from dawn to sunset every day for approximately one month annually. Electrolux changed its break time policies and interfered with the employees’ religious practices.

The claims were brought by the EEOC under Title VII of the Civil Rights Act of 1964. That law requires employers to attempt to make reasonable accommodations to employees if it does not cause any undue hardship to the employer. Minnesota law provides similar protections as well.

The settlement is a significant victory for all parties. It allows the Muslim employees to practice their sincere religious beliefs, while not causing an undue burden on the employer. Terms of the settlement include:

  • Electrolux will adjust break time schedule during the entire month of Ramadan to allow Muslim employees to pray and break their Ramadan fasts shortly after sunset in a safe environment, away from the production area.
  • Electrolux will also provide training to its employees at the St. Cloud facility on the requirements related to religious accommodation under federal law.
  • The company also agreed to report to the EEOC all future requests it receives for religious accommodations and how the requests were addressed by the company.

Ramadan began on August 9, shortly after the parties’ settlement in this case.

Teske Katz Kitzer & Rochel handles all types of employment law claims, including religious discrimination and failure to accommodate. Our firm has represented Muslim employees on a group basis for failing to provide reasonable religious accommodations.

If you have questions about your right to religious accommodations, contact Teske Katz Kitzer & Rochel today.

With Rise of Hate Groups, Laws Prohibiting Harassment at Work are Important Tools

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With the apparent increase of hate speech and hate groups on the rise in the United States, it is important for employees to keep in mind their rights to be free from hostility and harassment at work under federal and state law.

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. The Americans with Disabilities Act (ADA) protects employees based on disability, and the Age Discrimination in Employment Act (ADEA) protects people based on age. The Minnesota Human Rights Act (MHRA) provides similar protections for employees in Minnesota, and generally applies to any employer, regardless of size.

These laws also prohibit harassment, or a “hostile work environment,” for these same protected classes. For example, both Title VII and the MHRA prohibit an employer from maintaining a hostile work environment on the basis of race or religion. Put another way, the law protects employees from being harassed because of their race or religion (or any other protected status).

In order to qualify as a “hostile work environment” under the law, an employee must experience conduct, including acts or words, that are either severe or pervasive, and based on a protected class (such as race or religion). The harassment must be unwanted, and it must be objectively offensive to a reasonable person. Examples of racial harassment (also called hostile work environment) include hanging a noose in a workspace, using racial slurs or epithets, or repeatedly using racial or similar stereotypes about coworkers.

According to a recent study, many employees find their workplace hostile—as many as one in five employees believes they have experienced hostility at work. At the same time, racial and religious hate groups still continue to exist throughout the United States, including in Minnesota. According to the Southern Poverty Law Center, hate groups are on the rise.

One way to combat hateful speech and conduct is to know and enforce your rights under federal and state employment laws. If you believe that you have been targeted because of race, sex, gender, sexual orientation, religion, age or disability, or experience harassment or hostility at work, contact Teske Katz Kitzer & Rochel today.

Minnesota Supreme Court Affirms Broad Protection for Whistleblowers

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Today, the Minnesota Supreme Court ruled in favor of employees, holding that the Minnesota legislature intended to overrule caselaw that limited Minnesota’s Whistleblower Act (MWA) when it amended the law in 2013. The case, Freidlander v. Edwards Life Sciences, centered around the definition of “good faith.” The MWA protects employees from retaliation if they report illegal conduct in “good faith.” Prior to 2013, the statute provided no definition for the term “good faith.” Beginning in 2002, the Minnesota Supreme Court limited that definition in several cases. The effect of the court’s narrow definition was to limit protections for employees, leaving no legal recourse for many employees were fired for reporting unlawful conduct. These decisions undermined the purpose of the Minnesota Whistleblower Act by making it it much more difficult for employees to report unlawful activity without losing their jobs. Consequently, in 2013, the Minnesota Legislature took action, defining “good faith” as any report that is not knowingly false or in reckless disregard of the truth. By doing so, the Legislature restored the broad protections of the MWA.

Several companies, including Edwards Life Sciences, and the Chamber of Commerce, disagreed with the Legislature’s intent and argued that the judicially-created, narrow definition of “good faith” still applied, even though the legislature changed the law. In a case that affects virtually every employee in Minnesota, the Supreme Court rejected this argument, and held that the legislature intended to change the definition, stating that the employer’s reading would “render the ‘good faith’ definition section of the 2013 amendment superfluous, and run afoul of our presumption that the Legislature intends to change the law when it amends a statute.”

The decision was unanimous, with Chief Justice Gildea authoring the opinion. The decision solidifies the Legislature’s effort to ensure that employees are protected from being fired or retaliated against if they report violations of law, or suspected violations of law, to their employer or to third parties. Employees must make such reports in “good faith,” which means that they are not protected if they lie or make reports in reckless disregard of the truth.

The case was successfully argued by Adam Hansen of Apollo Law, and the plaintiff is represented by Halunen Law and Nichols Kaster. Phillip Kitzer, Douglas Micko and Brian Rochel of Teske Katz Kitzer & Rochel also participated on behalf of Minnesota NELA, who appeared as amicus curiae arguing in favor of the broader interpretation.

If you would like to learn more, or if you believe you have experienced retaliation at work, contact Teske Katz Kitzer & Rochel today.