Free Speech in the Workplace?

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Many people mistakenly believe that an employee cannot be fired for exercising their rights to free speech. For most employees, that is simply not true.

The First Amendment to the United States Constitution generally protects citizens from government retaliation for speech. It provides that “Congress shall make no law . . . abridging the freedom of speech.” Private employers, however, are not prohibited by the First Amendment from terminating the employment relationship based on speech. In fact, many employers do terminate employees for engaging in “free speech.” Because nearly every state in the country is an “at-will employment” state, employers are generally entitled to terminate the employment relationship “at will,” or for any reason they wish. While there are exceptions to the “at-will” doctrine (such as race discrimination or firing someone for certain types of whistleblowing), firing an employee for what they say outside of work is usually not illegal.

In the private sector, unions have historically provided the “rights” that many employees believe they have at work. When unions negotiate contracts on behalf of many employees, they usually negotiate that employers are limited in the reasons they can terminate an employee. Likewise, certain high-level employees are often provided employment contracts that restrict the reasons for terminating an employee. But because only around 6% of private-sector employees belong to unions, and very few employees have an employment contract, most employers can legally terminate an employee because of what they say outside of work.

Ask Juli Briskman. Ms. Briskman became famous for a photograph taken of her when she gave the President a one-finger salute as he drove past in his motorcade. Her employer, Akima LLC, terminated Ms. Briskman’s employment for violating the company’s social media policy. Ms. Brisman sued Akima by arguing that a public-policy exception should exist to the at-will employment doctrine. But the Virginia Court dismissed her case for failure to state a legal claim.

Similarly, a white nationalist was fired from his job as a welder and mechanic after appearing in the New York Times at a white nationalist rally in Charlottesville, Virginia. The company, Limestone & Sones Inc. posted a statement on its Facebook page stating they “would like to take this time to assure our friends and customers that we do not condone the actions of people involved in this horrific display that has taken place in Charlottesville.”

This is not to say that employers can never be held liable for terminating an employee for “free speech.” Many states, including Minnesota, prohibit an employer from terminating an employee for reporting, in good faith, violations of the law to the police. While some employers may feel tempted to retaliate against an employee for speaking with the police about its own policies or practices, such retaliation would likely violate the law. Likewise, an employer who terminates an employee for protesting race discrimination may itself face a lawsuit for race discrimination.

If you have been fired for engaging in “free speech,” and would like to know more about your rights, contact an attorney at Teske Katz Kitzer & Rochel today.

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.

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.

Kitzer & Rochel Publish Article in FBA Labor & Employment Magazine

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Teske Katz Kitzer & Rochel partners Brian Rochel and Phillip Kitzer co-authored an article in the Spring issue of The Labouring Oar, published by the Federal Bar Association’s (FBA) Labor and Employment Law Section. Phillip and Brian wrote the article along with Frances Baillon, partner at Baillon Thome. The article, titled “Is McDonnell Douglas Too Burdensome? Circuits Question the Utility of the Decades Old Burden-Shifting Model,” analyzes recent court decisions calling into question the usefulness of the McDonnell Douglas burden-shifting scheme.

Noting the varying approaches in the federal circuits of applying the McDonnell Douglas test to employment claims, at least two judges have advocated for doing away with burden shifting, otherwise called the indirect method, altogether because of the confusion caused by its application.  District Judge Paul Magnuson, sitting on the Eighth Circuit panel by designation, provided a lengthy exposition of McDonnell Douglas in Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004), calling the direct/indirect evidence distinction a “legal fiction,” and opined that it “should have fallen into disuse after Congress amended the Civil Rights Act in 1991.”  Likewise, Seventh Circuit Chief Judge Diane Wood provided a well-reasoned critique of the indirect method in Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012).  Judge Wood wrote, “Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straight-forward way.” The article concluded by suggesting the United States Supreme Court may ultimately take the issue to resolve the confusion within the circuits.

Click here to view the full article.

Kitzer Rochel, PLLP Defeats Summary Judgment in MHRA Disability Claims

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In Oliver v. MCTC, Kitzer Rochel attorney Brian Rochel, along with co-counsel Michelle Dye Neumann, successfully argued against the employer’s motion to dismiss Ms. Oliver’s Minnesota Human Rights Act claims. Ms. Oliver suffered a disabling injury at work and alleged that she was terminated because of her disability, and because she requested reasonable accommodation for her disability. The Minnesota District Court denied the motion, ruling that a jury could find in Ms. Oliver’s favor on her claims. The case will now proceed to a jury trial.

The court’s opinion is important because it held that Karst v. F.C. Hayer Co, 447 N.W.2d 180 (Minn. 1989), a case long used by employers to fend off liability for disability discrimination, did not apply to Ms. Oliver’s claims. In doing so, the court narrowed the application of Karst and called into question whether it is still good law.

Teske Katz Kitzer & Rochel Defeats Pretrial Motion to Dismiss, Court Limits Karst Ruling

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In Jason Lindner v. Donatelli Bros. of White Bear Lake d/b/a Donatelli’s, the United States District Court for the District of Minnesota denied Defendant’s motion to dismiss Plaintiff Lindner’s retaliation claim. In an important opinion of first impression, the court held that Karst v. F.C. Hayer Co, 447 N.W.2d 180 (Minn. 1989), which bars discrimination claims in certain cases, does not apply to retaliation or reprisal claims.  The court noted that “a reprisal claim is fundamentally different [than a disability claim] – such a claim is predicated not on an employer’s injury (or disability), but rather on his or her conduct.” Lindner’s claims will now proceed to trial before a federal jury.

Phillip Kitzer and Brian Rochel represent Plaintiff Jason Lindner in the employment retaliation and discrimination lawsuit.

Rochel Moderates Panel of Federal Law Clerks

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Brian Rochel moderated a panel of federal law clerks discussing practice pointers for employment and labor attorneys. The panel, entitled “Federal Law Clerks’ Tips on Trial and Dispositive Motions,” featured Katherine Bruce, law clerk to the Honorable Donovan W. Frank, Mark Betinsky, law clerk to the Honorable Richard J. Kyle, and Elizabeth Welter, law clerk to the Honorable Patrick J. Schiltz. The panel was part of the Federal Bar Association Labor & Employment Section‘s fall seminar. For more information on the seminar, including the federal law clerk panel, click here.

 

Minnesota Supreme Court Issues Landmark Ruling Ensuring Jury Trials in Retaliation Claims

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Phillip Kitzer and co-counsel Michelle Dye Neumann received a favorable decision in a landmark decision from the Minnesota Supreme Court. In Darrel Schmitz v. United States Steel Corporation, Schmitz alleged he was terminated in retaliation for filing a workers’ compensation claim.  Schmitz requested a jury trial for his workers’ compensation retaliation claim under the Minnesota Constitution, but his request was denied.  Schmitz appealed the decision to the Minnesota Court of Appeals, arguing that he was entitled to a jury under the Minnesota Constitution.  The Court of Appeals ruled in Schmitz’s favor, and U.S. Steel appealed to the Minnesota Supreme Court.  The Minnesota Supreme Court affirmed the decision, holding that the Minnesota Constitution guaranteed the right to a jury trial for employees claiming that they were terminated for seeking workers’ compensation benefits.

Kitzer & Rochel Defeat Summary Judgment in Federal Court

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In Jason Lindner v. Donatelli Bros. of White Bear Lake d/b/a Donatelli’s, Brian Rochel and Phillip Kitzer defeated summary judgment in U.S. District Court. Lindner’s claims involved FMLA interference and retaliation as well as for seeking time off from work related to his disability. After 18 years of employment, Jason Lindner was fired while on FMLA leave stemming from a recently-developed respiratory airway disease (RADs).  The person who decided to terminate Lindner, Trish Appleby, testified that she relied on video footage to disprove that Lindner fell in the parking lot, justifying her decision to terminate him for falsifying a workers’ compensation claim.

The Court held that summary judgment was not appropriate because there was sufficient evidence for a jury to find that Donatelli’s proffered reasons for termination were pretext for retaliation. First, Appleby admitted she was skeptical of the injury even though Lindner’s account of the fall was “pretty much the same” to the account he gave her.  Second, the Court stated that the video was unclear and could reasonably discredit Appleby’s “adamant testimony” that she could “clearly” tell from the tape that he did not fall.  Likewise, Appleby adamantly claimed that Lindner’s doctor’s note did not contain “one objective” indication of injury, yet the doctor’s note did contain indications that Lindner was injured. Third, the Court found that the timing of Appleby’s investigation into the alleged fall could be considered suspicious.  Appleby did not take it upon herself to investigate the injury until after Lindner suffered the RADs injury and requested time off from work.  Fourth, Appleby testified that Lindner’s previous requests for time off constituted “performance problems” that could have led to his termination.  Finally, Appleby did not provide Lindner the same opportunities to remedy alleged behavioral problems that it provided other employees, even those who committed offenses she considered “flagrant.” The Court held, “This evidence of hostility combined with the timing of his termination and the shaky foundation of her professed belief could lead a reasonable jury to discredit Appleby and conclude her decision was in fact motivated by Lindner’s medical leave.”

Likewise, the Court denied Donatelli’s summary judgment motion on Lindner’s FMLA entitlement claim.  Although Donatelli’s argued that Lindner “never” made an FMLA request, the Court found that the argument is “clearly contradicted by the record.” Lindner submitted a complete FMLA request for the day before he was terminated, and Donatelli’s was “clearly on notice of his potential need for FMLA leave because Appleby raised the issue with him and sent him FMLA paperwork, which stated he was eligible for leave[]”. Accordingly, the Court held that Lindner’s FMLA entitlement claim could proceed to jury trial along with his retaliation claim under state and federal law.

The full opinion, issued by U.S. Judge Richard J. Kyle, is available here.