Tag Archive for: employee rights

Can My Employer Fire Me if I Fail a Drug Test?

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Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) governs drug testing for employees. Employers may not require drug or alcohol testing unless such testing is completed under a written drug and alcohol testing policy that contains certain information required by law.[1] The testing must also be completed only by a qualified laboratory.[2]

If your employer requires you to take an initial drug test and you test positive, DATWA prohibits your employer from firing you without first providing you with the opportunity to participate in counseling or rehabilitation.[3] Your employer is also required to provide you with written documentation of your test results.[4]

If your employer has not followed these legal requirements, or you have questions about drug testing at work, 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. § 181.951, subd. 1.

[2] Minn. Stat. § 181.953, subd. 1.

[3] Minn. Stat. § 181.953, subd. 10(b)(1); Hanson v. City of Hawley, No. A05-1940, WL 1148125, at *1 (Minn. Ct. App. May 2, 2006).

[4] Minn. Stat. § 181.953, subd. 7.

Can My Employer Fire Me for Reporting Violations of Law?

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The Minnesota Whistleblower Act (MWA) protects employees who report illegal activity, or “blow the whistle,” at work. The MWA prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee in relation to compensation or the terms, conditions, location, or privileges of employment because an employee reported illegal activity.[1]

You are protected under the MWA if you make a good faith report of a violation, suspected violation, or planned violation of any state or federal law, common law, or rule.[2] These categories are very broad and protect a wide range of conduct. You are protected whether you make this report to your employer or any governmental body or law enforcement official.[3] In addition and separately, you have the same protections if a public body or office requests that you participate in an investigation, hearing, or inquiry.[4]

Whistleblower protections include, for example, reporting violations relating to COVID-19, state or federal workplace safety rules, criminal violations, securities laws, and virtually any other type of legal rule, law or regulation.

If you have questions about whistleblower rights contact us. Or if believe that your employer has terminated your employment or treated you unfairly after you reported illegal activity, contact us. Our experienced Minnesota employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

 

[1] Minn. Stat. § 181.932, subd. 1(3).

[2] Minn. Stat. § 181.932, subd. 1(1).

[3] Minn. Stat. § 181.932, subd. 1(1).

[4] Minn. Stat. § 181.932, subd. 1(2).

Can I Request My Personnel Record from My Employer?

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Under Minnesota law, if an employee makes a written request to their employer, the employer must provide the employee with the opportunity to review their personnel record.[1] However, the employer is not required to provide an opportunity for the employee to review their personnel record if the employee has reviewed their file within the previous six months.[2] After an employee no longer works for the employer, the employee may review their personnel record once per year for as long as the record is kept.[3]

For current employees, if an employee makes a written request, the employer must allow the employee to view the file within seven days for records kept in Minnesota, or fourteen days for records kept outside of Minnesota.[4] For current employees, the personnel record (or an accurate copy) must be made available to the employee during the employer’s normal operating hours.[5] The employer is allowed to be present (or have a representative present) during review of the personnel file.[6] After review, the employee can make a written request for a copy of the record, and the employer is required to provide a copy.[7]

For former employees, the employer must provide a copy once the former employee makes a written request, but need not allow review of the personnel file itself.[8] The employer is not permitted to charge a copy fee for the copy of the personnel file.[9] The employer must provide a copy of the file to the employee within seven days (for files kept in Minnesota) or fourteen days (for files kept outside the state).

If you have questions about this process, contact us. Our experienced employment law attorneys would be happy to discuss the process and help you determine your next steps.

[1] Minn. Stat. § 181.961, subd. 1.

[2] Minn. Stat. § 181.961, subd. 1.

[3] Minn. Stat. § 181.961, subd. 1.

[4] Minn. Stat. § 181.961, subd. 2(a).

[5] Minn. Stat. § 181.961, subd. 2(b).

[6] Minn. Stat. § 181.961, subd. 2(b).

[7] Minn. Stat. § 181.961, subd. 2(b).

[8] Minn. Stat. § 181.961, subd. 2(c).

[9] Minn. Stat. § 181.961, subd. 2(d).

[10] Minn. Stat. § 181.961, subd. 3.

How Do I Know If I Can Request FMLA Leave?

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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?

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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.

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

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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.

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

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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.

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.

Gretchen Carlson Leads Fight against Sexual Harassment and Forced Arbitration at Work

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Gretchen Carlson, Minnesota native and former Fox News star, is featured in an article by Time Magazine on her fight against sexual harassment at work. Carlson was sexually harassed by her boss, Roger Ailes, then Chairman of Fox News. Since taking her legal claims public, she has been a role model for victims of sexual harassment across the U.S. Carlson is quoted in the article, saying “I think this is happening every single day to women in all walks of life and in all different types of corporations. I’ve heard from so many women, from Wall Street to a tiny little town in Alabama. It’s everywhere.”

Carlson’s story helps shed light on the pervasive problem of sexual harassment in employment settings around the country. Sex discrimination, and sexual harassment, remain very real problems in Minnesota and in nearly every city and state in America.

Carlson is also speaking out against forced arbitration in employment agreements and employee handbooks. She has agreed to testify to congress about the problems of forced arbitration. Says Carlson, “It is a huge problem. Because it’s secret. And it plays into why we think that we’ve come so far in society and we probably really haven’t—because we don’t hear about it.”

Minnesota Senator Al Franken is a co-sponsor of a proposed law to ban forced arbitration, a bill that Carlson supports (Senator Patrick Leahy is also co-sponsor). Teske Katz Kitzer & Rochel has been at the forefront of the fight against forced arbitration. Founding partner Vildan Teske has testified to the U.S. Senate against forced arbitration, has worked with Senator Franken on this important issue, and has been quoted in the media on forced arbitration for consumers.

If you have questions about sexual harassment, have been harassed at work, or would like to learn more about the fight against forced arbitration, contact Teske Katz Kitzer & Rochel today.