Brian Rochel to Present on Multiple CLEs at 2023 Upper Midwest Employment Law Institute (ELI)

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Brian Rochel will be presenting on two separate CLE panels at the 2023 Upper Midwest Employment Law Institute (ELI), on May 18-19, 2023, in Saint Paul, Minnesota.

First, Brian will be moderating a panel titled, “From Remote Work to Quiet Quitting and Work-Life Balance–Acting on Changing Perceptions and Realities Around Work and Workplaces.” The panel will explore a range of interconnected topics, focusing on the post-COVID workplace and employees’ changing perceptions and expectations.

Second, Brian will participate in a panel focusing on employment remedies and damages available in lawsuits. The panel is titled, “What’s the Harm: Evaluating and Proving Damages.”

The Upper Midwest ELI is one of the largest and most highly regarded employment law events in the country, featuring speakers from across the United States and drawing participants from various states in the midwest.

Brian Rochel Testifies at Minnesota Senate in Favor of Noncompete Ban

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On March 15, 2023, the Minnesota Senate Judiciary Committee heard testimony on a bill that would ban noncompete agreements in Minnesota. Brian Rochel testified as an expert on the bill, SF 405, explaining how noncompete agreements harm workers and the economy.

The bill passed the Judiciary Committee and is moving quickly through the legislature.

If you have questions about noncompete agreements, including Minnesota and federal laws seeking to stop the problematic spread of noncompete agreements, please contact Kitzer Rochel.

Minnesota & Federal Trade Commission Seek to End Oppressive Noncompete Agreements

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On January 19, 2022, the Federal Trade Commission (FTC) proposed a rule that would broadly ban the use of noncompete clauses by employers with respect to employees, independent contractors, and volunteers. Specifically, the proposed rule would make it illegal for an employer to enter into any noncompete agreement. It would also bar any attempt to enter into a noncompete. It would even bar maintaining a noncompete agreement with a worker. And, under some circumstances, it prohibits employers from telling a worker they are subject to a noncompete agreement.

Employers use noncompete agreements across industries and job levels to limit the movement of employees, including, for example, hairstylists, teachers, and physicians. Often included in the initial employment contract, noncompete clauses typically block employees from working for a competing employer or starting a competing business within a certain geographic area for a specified time period following the termination of employment.

Noncompete agreements have a debilitating effect on employees. Oftentimes, potential employees are forced into signing noncompete agreements in order to obtain employment, with limited, if any, bargaining power on their end of the agreement. Noncompete agreements limit employees’ ability to practice their trade and stagnate competition in the broader economy. Research has shown that noncompete agreements negatively affect competition in labor markets and reduce wages for employees across the labor force, even those not bound by noncompete agreements. In other words, noncompete agreements harm labor market competition by stopping employees from seeking out better job opportunities and preventing employers from hiring the best talent.

By banning noncompete agreements, the FTC estimates an increase in wages by nearly $300 billion per year and expanded career opportunities for nearly 30 million Americans. The National Employment Lawyers Association (NELA), an organization of lawyers who, like Kitzer Rochel, fight for workers’ rights, supports the rule.

The FTC proposed rule falls within a nationwide trend toward banning noncompete agreements. Minnesota has also introduced a bill banning noncompete agreements, following states such as California and North Dakota.

If you have questions about noncompete agreements—or any of the proposed rules and legislation—please contact Kitzer Rochel today.

Congress Passes New Critical Protections for Pregnant Workers

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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.

Kitzer Rochel Recognized by Benchmark Litigation 2023

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Kitzer Rochel, PLLP, a boutique employment litigation law firm in Minneapolis, MN, is pleased to announce that the firm and its lawyers were recognized in Benchmark Litigation’s 2023 guide. The annual guide identifies leading litigators and law firms using extensive research methods and in-depth interviews with practitioners, dispute resolution specialists, and clients.

Partners Phillip Kitzer and Brian Rochel each received the directory’s distinguished honor of “Labor and Employment Star,” as recognized by peers and members of the labor and employment law community.

Click here for more details about Phillip Kitzer and Brian Rochel. If you have questions about employment law or would like to learn more about Kitzer Rochel, please contact us.

And please visit Benchmark Litigation’s website for more information on its 2023 rankings. About Benchmark Litigation (www.benchmarklitigation.com)

Since its inception in 2008, Benchmark Litigation has been the only publication on the market to focus exclusively on litigation in the US. The Benchmark brand has grown dramatically and garnered industry-wide accolades as the definitive hub for in-depth analysis of the players shaping the dynamic practice of litigation.

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

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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.

Brian Rochel and Phillip Kitzer Recognized as Super Lawyers

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Kitzer Rochel is proud to announce that Brian Rochel and Phillip Kitzer have both been selected as a Minnesota Super Lawyer in 2022. Attorneys are selected based on their professional accomplishments and leadership skills.

Both Mr. Rochel and Mr. Kitzer are highly dedicated attorneys who practice on behalf of employees involved in a wide variety of employment-related legal disputes. They represent whistleblowers and other employees who are wrongfully terminated, discriminated and/or retaliated against. Mr. Rochel serves on the Board of Directors for the Minnesota Chapter of the National Employment Lawyers Association, and Mr. Kitzer serves on the Governing Counsel for the Labor and Employment Law Section of the Minnesota State Bar Association. Mr. Rochel and Mr. Kitzer are each certified as Labor and Employment Law Specialists by the Minnesota State Bar Association.

If you would like to consult with Mr. Kitzer or Mr. Rochel, please contact us today.

Brian Rochel Presents at CLE on Minnesota Employment Law

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On March 30, 2022, Brian Rochel presented on a panel entitled “McDonnell Douglas and the Direct Method – A New Normal on the Horizon?” The presentation focused on the McDonnell Douglas (or indirect) burden shifting method for proving discrimination and retaliation claims. The Minnesota Supreme Court is currently deciding whether Minnesota courts will continue applying the McDonnell Douglas framework. In Hanson v. DNR, the Supreme Court was asked to abolish use of the McDonnell Douglas framework because it has become problematic over the several decades it has developed.

Hanson, along with amici curiae Minnesota NELA and ELA-UM, argued that McDonnell Douglas has been misused on Rule 56 and resulted in dismissing employment claims that should appropriately be tried to a jury.

In the March 30 CLE, Brian laid out the arguments made by the employee in Hanson, and the panelists discussed the pros and cons of McDonnell Douglas in employment litigation–as well as what employment litigation may look like in the absence of the familiar framework.

The panel also discussed Friend v. Gopher Company, Inc., a Minnesota Court of Appeals case holding that McDonnell Douglas is not required to be applied in every case. Brian argued that means that regardless of the Supreme Court’s decision in Hanson v. DNR, employees may still choose to forego McDonnell Douglas in favor of the “direct method” to prove cases at trial and present evidence on summary judgment.

A decision is expected in Hanson v. DNR soon, check back for more updates. If you have questions about Minnesota employment law, proving claims of discrimination or retaliation, or related topics, please contact us.