Congress Passes New Critical Protections for Pregnant Workers

On December 22, 2022, the Senate passed the Pregnant Workers Fairness Act (PWFA). Advocates for fair and equitable working conditions for pregnant workers have been fighting for passage of this Act over the past ten years and the bill is finally on its way to the White House after strong bipartisan support.

When a worker is pregnant, they may face difficult challenges at work. Oftentimes, they are asked to perform job duties that put their health and safety at risk; they may have their pay reduced or be required to take unpaid leave; or they could be terminated from their position because of their condition. These are all types of discrimination and retaliation the PWFA now prohibits.

The PWFA is intended to protect pregnant workers from experiencing this kind of treatment at a time when they need stability and security in their job the most.

If you are experiencing discrimination or retaliation on the basis of your pregnancy or other protected status, contact Kitzer Rochel. Our experienced employment law attorneys would be happy to discuss your case and understand your legal rights and options.

Brian Rochel and Phillip Kitzer Present at Employee Rights Conference

The National Employment Lawyers Association (NELA) holds a special conference for its Eighth Circuit Chapter once every two years. The 2022 conference was held on October 14-15, in St. Louis, MO. 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 Biannual Eight Circuit NELA Conference provides several days of intensive, high-quality continuing legal education (CLE) training for employment lawyers. Both Phillip Kitzer and Brian Rochel were honored to be invited to speak at the Conference.

Phillip presented on the Conference’s lead panel, along with co-presenter Frances Baillon. Phillip and Frances discussed the latest updates to employment-related cases throughout the Eighth Circuit and the Supreme Court.

Brian, along with co-panelists Paige Fiedler and Kevin Baldwin, presented on a panel titled, “Valuing Emotional Distress Damages.” The panel provided an animated discussion among seasoned employment lawyers on the topic of valuing a plaintiff’s emotional distress throughout a case.

If you feel you have experienced discrimination, harassment, or retaliation related to your employment, 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.

 

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 . . .”).

Fourth Circuit Grants Gender Dysphoria Disability Protection under the Americans with Disabilities Act (ADA)

On August 16, 2022, the U.S. Court of Appeals for the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia) has become the first federal appellate court to find that gender dysphoria is covered by the Americans with Disabilities Act (ADA).[1] The decision came after a transgender woman sued Fairfax County for housing her with men during her time in jail.

The court explained that “being transgender is not a disability,” but “many transgender people experience gender dysphoria.” Distinct from now-obsolete “gender identity disorders”[2] that the ADA excludes, the American Psychiatric Association (APA) defines gender dysphoria as “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.” As the court explained, gender dysphoria “concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender.” Excluding gender dysphoria from ADA protection, the court ruled, “would discriminate against transgender people as a class,” in violation of the Equal Protection Clause of the Fourteenth Amendment.

The ADA requires employers, schools, and other businesses or organizations open to the public to provide reasonable accommodations to support people with disabilities. In the employment context, this decision allows employees experiencing gender dysphoria to request workplace accommodation from their employers. Additionally, those discriminated against for gender dysphoria may bring a claim under the ADA.

This ruling follows an increase in federal district courts’ endorsement of gender dysphoria as a protected disability under federal anti-discrimination law. Even so, the law is constantly evolving in this area, and you should contact an attorney to see how this ruling—or the ADA in general—applies to you. Our experienced employment law attorneys are happy to discuss your case and help you understand your legal rights and options in light of this new ruling.

NOTES:

[1] Williams v. Kincaid, No. 21-2030, 2022 U.S. App. LEXIS 22728 (4th Cir. Aug. 16, 2022).

[2] The APA removed “gender identity disorder” from its Diagnostic and Statistical Manual of Mental Disorders nearly a decade ago.

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).

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.