Tag Archive for: employment law

I’ve just been Fired, What do I do Now? 10 Steps to Approach Termination

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Your boss calls you into a meeting with human resources. Suddenly, you find yourself without a job and without a clue what the next step will be. Situations like this are difficult, but here are some steps to take to make sure you are able to exercise your rights and confidently move toward your next opportunity.

  1. During the termination meeting, ask why you are being terminated. Listen to anything that is said, particularly regarding your performance, company needs (such as a layoff, reduction-in-force or restructuring), concerns others raised about you, or anything else they have to say. Your employer should be able to articulate the reasons for the decision to terminate your employment.
  2. Request a written, truthful reason for your termination. According to Minnesota law, an employee who has been involuntarily terminated may request that her or his employer provide a written reason within 10 working days of the request. Stat. § 181.933. However, you must request the reason in writing, and within 15 days of your termination. You should quickly make this written request or talk with an attorney about doing so.
  3. Request a copy of your personnel record. According to Minnesota law, upon separation from employment, any employee is entitled to a full copy of her or his personnel record, but only if she or he requests a copy in writing. Minn. Stat. § 181.961. Your employer is not allowed to charge you a fee for the personnel record. A copy of your personnel record may include evidence regarding the decision to terminate your employment, so you should request this quickly even if you choose not to hire an attorney.
  4. Collect any documents that may have any relation to your termination. This includes, for example, performance evaluations, emails, doctor’s notes, notes from managers/customers, or personal notes you may have taken. You must be careful to not take trade secret information or company property, however. Such information is usually defined by documents that you may have signed. If you have questions about what constitutes confidential or proprietary information, you should contact an attorney.
  5. If possible, ask your coworkers what they think about the reasons you were given for termination. Ask whether they agree with the decision, and what they thought about your performance and/or conduct. It may be helpful to know whether they are aware of anyone who was terminated around the same time and/or for similar reasons. You can also ask whether they were aware of any metrics used in the decision to terminate your employment.
  6. Contact an employment attorney. If you’ve been terminated, you may have legal rights, but you must contact an attorney as soon as possible to avoid missing important time limitations that could result in you losing any rights you may have.
  7. Review any contracts or agreements you may have related to your employment. When you started your position, you may have signed one or more forms that you do not recall in detail; this is common. You should review those documents in detail and should most likely have an attorney review them as well to advise you of your rights and options.
  8. Be careful about what you post on social media. Do not defame or speak negatively about your employer on social media following your termination (or at any time). There is no upside to trashing a former employer. It could make you look bad to future employers, or could be raised in a lawsuit to distract from your strong legal claims.
  9. Consider filing for unemployment benefits. If you are terminated, you can apply for unemployment benefits to determine whether you are eligible. There is a helpful checklist as well as an online tool to apply for benefits which can be found on the Minnesota Unemployment Insurance website, uimn.org.
  10. Try to find a new job and keep detailed records of your job search. In order to seek unemployment benefits, you are required to track your job-search efforts. If you bring a wrongful termination lawsuit, your former employer may try to prove that you did not try hard enough to find replacement income, raising a “defense” that you are not entitled to all of your lost income. Overall, you should diligently try to find a new job, and keep a very detailed log of your efforts in doing so.

Being terminated is difficult and personal, we understand that. But rest assured it is not the end of the road. It does not define you as a person and it should not dictate your career path. We are here to help you determine your rights and remedies moving forward. If you have any questions, please contact an experienced employment lawyer today.

SCOTUS Grants Writ of Certiorari for Three LGBT Employment Discrimination Cases

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On April 22, 2019, the Supreme Court granted petitions for writs of certiorari in three LGBT employment cases. Each of the three cases addresses whether Title VII of the Civil Rights Act of 1964 offers protection against discrimination in employment on the basis of sexual orientation or gender identity.

In Bostock v. Clayton County, Georgia, the Plaintiff, Gerald Lynn Bostock, claims his sexual orientation as a gay man was the reason for his termination from Clayton County as a Child Welfare Services Coordinator. The District Court ruled that he had no viable claim because Title VII does not prohibit discrimination on the basis of sexual orientation. The Eleventh Circuit established the precedent that discrimination on the basis of sexual orientation is not a form of sex discrimination protected by Title VII.

In contrast, the Second Circuit Court of Appeals held in Zarda v. Altitude Express, Inc., that sexual orientation is protected under Title VII, because the Supreme Court has ruled previously that gender stereotyping violates the statute. The Second Circuit held discrimination based on sexual orientation was an “actionable subset of sex discrimination” because you cannot address sexual orientation without consideration of the individual’s gender and the related stereotypes.

In R.G. & G.R. Harris Funeral Homes v. EEOC, et al., the Sixth Circuit also held that Title VII protects employees who are transgender. Employee Aimee Stephens was terminated when she informed her coworkers that “she was undergoing a gender transition from male to female and intended to dress in appropriate business attire to work as a woman.” Two weeks later she was terminated because the funeral home owner thought he would be “violating God’s commands” by allowing Stephens to dress in women’s clothing. The federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens.

Minnesota Supreme Court Issues Landmark Disability Discrimination Decision

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On February 27, 2019, the Minnesota Supreme Court issued a major decision in favor of employees. The case, Daniel v. Minneapolis, addressed whether an employee who is disabled as a result of a work injury can bring a claim under the Minnesota Human Rights Act (MHRA). For decades, such employees were prohibited from filing MHRA claims because of a prior supreme court ruling in Karst v. FC Hayer Co., Inc. (issued in 1989). Under Karst, disabled employees were prohibited from bringing human rights claims because they were preempted by Minnesota’s Workers’ Compensation Act. Consequently, any employee who experienced disability discrimination resulting from a work injury was left without any recourse to remedy the discrimination.

This led to absurd results. For example, if an employee suffered a disabling injury outside of work, she would be protected from discrimination under the MHRA. But if that same employee became disabled at work, she would have no protection from discrimination. Her employer would be free to fire her because of her disability and nothing more. This was bad policy for Minnesotans and was out of step with the rest of the country, with nearly every state rejecting similar interpretations of their own state laws.

In Daniel, the Minnesota Supreme Court corrected that problem and overruled the Karst decision. Writing for a 5-2 majority, Justice Margaret Chutich wrote, “Unlike the workers’ compensation act, the human rights act is a civil rights law that protects employees from unlawful employment discrimination.” The Court recognized the fundamental difference between the Workers’ Compensation Act, which is designed to remedy work injuries, and the MHRA, which is designed to protect disabled employees from discrimination. Because of these differences, neither law preempts the other. Instead, workers have rights under both.

Teske, Katz, Kitzer & Rochel lawyers Phillip Kitzer and Brian Rochel wrote on behalf of the Minnesota Chapter of the National Employment Lawyers Association in a “friend of the court” or amicus brief, asking the Supreme Court to overrule the Karst decision. “This marks a great step forward for all employees in Minnesota and corrects a decades-long error in the law,” said Phillip Kitzer. “Employees should not be treated differently and denied equal protection simply because they become disabled as a result of a work injury. That is not consistent with Minnesota’s strong history of protecting and advancing human rights,” added Brian Rochel.

If you have any questions about Daniel v. Minneapolis, disability discrimination, workers’ compensation retaliation, or employment law generally, please contact Teske, Katz, Kitzer & Rochel today.

Equal Pay Laws Necessary Tool In Fight Against Gender Pay Gap

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The “me too” and “time’s up” movements focus primarily on sexual harassment and abuse in the workplace. But the movements have also raised awareness of a problem that has persisted throughout U.S. history: gender pay disparity.

The gender pay gap is the gap between what men and women are paid. It refers to the average annual pay of all women compared to the pay men, when variables are taken into account (like equal jobs, amount of time worked, etc). Currently, the gender pay gap across the U.S. is 80%. That means that for every hour worked, a woman will be paid 80% of what a man is paid for the same work. In Minnesota, the pay gap is 82%.

This pay gap violates the law, yet it persists. By highlighting these laws and aggressively enforcing them in the courts, proponents of fair pay and women’s continue to work toward eliminating sex discrimination in employment.

The federal Equal Pay Act (EPA) requires that employers pay the same amount of compensation to every worker, regardless of gender or sex. That is, women and men should be paid the same amount for the work that they perform.

The EPA was signed into law in 1963 by President John F. Kennedy. In passing the EPA, Congress stated its intent to eliminate sex discrimination because the gender pay gap:

  • depresses wages and living standards for employees necessary for their health and efficiency;
  • prevents the maximum utilization of the available labor resources;
  • tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;
  • burdens commerce and the free flow of goods in commerce; and
  • constitutes an unfair method of competition.

Minnesota has a similar law with similar protections. Under Minnesota’s “Equal Pay for Equal Work Law,” employers cannot pay workers of one sex less than employees of another sex. Minn. Stat. § 181.67. Similar to the EPA, the Equal Pay for Equal Work Law prohibits differential pay when employees of different genders are performing work that requires equal amounts of skill, effort, and responsibility, and done under similar working conditions.

Most employees across the country are protected by the EPA, though there are important exceptions. In Minnesota, most employees are also protected by the Equal Pay for Equal Work Law.

If you have questions about pay disparity or discrimination, contact the experienced employment lawyers at Teske, Katz, Kitzer & Rochel today to discuss further.

 

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.

Brian Rochel Presents at NELA’s 2018 Annual Convention

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On June 28, 2018, Brian Rochel presented along with co-panelists Kathy Butler and David Schlesinger at the National Employment Lawyers’ Association’s (NELA) 2018 Annual Convention in Chicago, Illinois.

Brian, Kathy and David’s panel, entitled “Outside-The-Box Discovery Tools: Getting Creative with Discovery in The Era of Proportionality,” focused on practical tips and advice for employee advocates.

Brian is an experienced litigator, representing hundreds of workers in lawsuits throughout his career. That work frequently includes fights over discovery—documents and evidence that plaintiffs need to prove their cases.

If you have questions about employment litigation or employment law please contact us and we will be happy to help you.

Brian Rochel Moderates Panel on Proving Damages at Employment Law Institute

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On May 21, 2018, Teske Katz Kitzer & Rochel partner Brian Rochel presented a continuing legal education seminar to his peers at the Upper Midwest Employment Law Institute. The Employment Law Institute, billed as “the Nation’s best employment law conference,” is a program that attracted approximately 1,400 lawyers and employment law professionals. Rochel, together with his co-panelists Anna Prakash, Sheila Engelmeier and Kaarin Nelson Schafer, presented a session entitled “What’s the Harm? – Evaluating and Proving Damages.” The discussion focused on methods of proving damages in trial of employment law claims, as well as presenting damages in settlement and pre-litigation contexts.

Teske Katz Kitzer & Rochel’s attorneys regularly practice employment law on behalf of employees. If you have questions about employment law, or would like to learn more about damages and remedies available to employees, contact us 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.

Minnesota Supreme Court extends statute of limitations for some claims under Minnesota Human Rights Act

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On April 12, 2017, the Minnesota Supreme Court issued an opinion in Peterson v. City of Minneapolis, 2017 Minn. LEXIS 195 (Apr. 12, 2017), that may extend the statute of limitations for some employment claims brought under the Minnesota Human Rights Act. Scott Peterson was a Minneapolis Police Officer for several years. In 2011, he was transferred to a new police unit, and he complained that the transfer was because of age discrimination. Rather than file a charge of discrimination, Officer Peterson filed a complaint through the City’s internal investigative wing. Over a year later, the City concluded that Officer Peterson had not been discriminated against.

Officer Peterson then sued the City. The City responded by arguing that it was too late to sue—there is a one-year statute of limitations for claims under the Minnesota Human Rights Act, and Peterson was more than a year after his transfer. But, as the Minnesota Supreme Court recognized, that one-year statute of limitations is “tolled” or suspended during the time that the parties are engaged in their own dispute resolution process. So for Officer Peterson, the time that the City was investigating his discrimination claim did not count against his statute of limitations. That meant that even though Officer Peterson sued more  than a year after his transfer, his claim was still timely.

Before seeking a lawyer, many employees will attempt to work out their employment issues directly with their employers. With the Peterson case, it now seems this time may not count toward the statute of limitations for claims under the Minnesota Human Rights Act. However, because many employment claims have very short statutes of limitations, you should contact a lawyer as soon as possible if you have an employment concern or a workplace dispute.

Teske Katz Kitzer & Rochel Brings Class Action Employment Lawsuit against City of Minneapolis

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On January 6, 2017, Teske Katz Kitzer & Rochel initiated Stewart, et al. v. The City of Minneapolis, a class action employment lawsuit. The suit is brought in Minnesota District Court, Fourth District–Hennepin County.

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

Mr. Stewart is represented by Brian Rochel, Marisa Katz and Douglas Micko, of Teske Katz Kitzer & Rochel, PLLP. Teske Katz Kitzer & Rochel is a class action and employment law firm with decades of experience around the country.

For more information, or if you have been terminated by the City of Minneapolis and have questions about this lawsuit, contact Brian Rochel here or via email at rochel@kitzerrochel.com.

A full press release and copy of the Complaint that has been served are available here:

Press Release

Stewart v. Minneapolis Complaint