Tag Archive for: employment law

Brian Rochel Presents at NELA National Convention in Los Angeles, CA

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Brian Rochel presented at the National Employment Lawyer Association’s (NELA) annual convention, held from June 22-25 in Los Angeles, CA. Brian presented as part of a panel entitled, “What I Wish I Knew When I was Starting Out as a Plaintiffs’ Employment Lawyer.” The presentation covered a wide breadth of topics, and was aimed at giving newer attorneys practical advice on how to develop their practices.

Mr. Rochel participated along with co-panelists Elissa J. Hobfoll and Whitney Judkins, and moderator Nina Pirrotti. For more information about NELA and/or the 2016 national convention, click here.

 

Minnesota Supreme Court Clarifies that Whistleblowers Have 6 Years to File Claim

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What is the statute of limitations for a whistleblower claim in Minnesota?  That was the question posed to the Minnesota Supreme Court in  Ford v. Minneapolis Public Schools.  In a unanimous decision, the Court has ruled that whistleblowers have six years to bring a lawsuit against an employer under the Minnesota Whistleblower Act (“MWA”).  

In Ford, the employee reported unethical and illegal activity in her department and, shortly thereafter, on April 22, 2008, was notified that her position would be eliminated at the end of the school year.  Her last day of work was June 30, 2008, and she began her lawsuit on June 29, 2010.  The Minneapolis Public Schools sought to dismiss her case by arguing that a two year statute of limitations applies to the MWA and the clock began to tick the moment she learned of her termination.  The Supreme Court agreed that the statute of limitations began to run in April, the moment she learned of her termination, but that a six-year statute of limitations applies to the MWA.  The decision can be found here.

Every law that protects employees has its own statute of limitation, which can range from ten days to six years. Employees must take action within the appropriate statute of limitations or they likely will forfeit any opportunity to do so in the future.

If you feel you have been treated unfairly at work, do not risk a statute of limitations deadline and contact the attorneys at Teske Katz Kitzer & Rochele Micko for a consultation right away.

Whistleblowers Reveal Widespread Fraud at Large Twin Cities Mental Health Agency

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Several whistleblowers have brought to light allegations of widespread fraud by Complementary Support Services (CSS). According to allegations from federal and state prosecutors, the mental healthcare provider defrauded Minnesota’s Medicaid program for millions of dollars and provided inadequate supervision of unlicensed practitioners. The state and federal prosecutors filed suit against CSS in November of 2015.

Several employees have come forward to blow the whistle and publicly report the fraud as well as retaliation and alleged blackmail of CSS employees. According to Naomi Davis, CSS threatened to withhold her paycheck if she did not agree to file false reports. Such claims could give rise to employment retaliation and whistleblower claims.

In addition, a qui tam, or False Claims Act (FCA) lawsuit was filed in 2013 against CSS, and both the United States and Minnesota governments have joined the suit. The lawsuit was initially filed under seal, as required by state and federal law, and was recently made public by the Court. The whistleblower lawsuit was filed by William Schwandt as a relator on behalf of both the United States and Minnesota.

These whistleblowers highlight the need for individuals to report government fraud, waste and abuse, and the important role that whistleblower reward laws–or qui tam laws, as they are sometimes called–play in stopping and correcting fraud in our community. There are robust laws that reward individuals who report fraud and even allow such individuals to file lawsuits on behalf of the government in order to recover the improperly-obtained money. In addition, there are many laws that protect employees who act as whistleblowers, preventing them from being retaliated against or fired for reporting or refusing to engage in fraud or other illegal conduct. In addition, some laws allow individuals to file confidential complaints in order to protect them from their employer or others of learning their identity.

Teske Katz Kitzer & Rochel has a proven track record of representing whistleblowers. If you have questions or feel that you may be aware of government fraud, contact us today for a free consultation.

Phillip Kitzer, Brian Rochel, and Doug Micko Present on Intersection of Disability, FMLA, and Workers’ Compensation Retaliation Laws

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On October 26, 2015, Teske Katz Kitzer & Rochel partners Phillip Kitzer and Brian Rochel presented a continuing legal education (CLE) seminar on the intersection between disability discrimination laws under the Minnesota Human Rights Act (“MHRA”) and the American’s With Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and Workers’ Compensation retaliation (“WCA”).  The presentation was moderated by Teske Katz Kitzer & Rochel partner Doug Micko, and addressed the complicated legal considerations faced by both employers and employees when an employee has a workplace injury or disability.  The  presentation was made as part of Minnesota CLE’s Employment Law Webcast Series.

To learn more about the disability discrimination, your rights under the FMLA, or your rights under workers’ compensation retaliation, please contact Teske Katz Kitzer & Rochel today.

Minnesota Court of Appeals Holds Restrictive Covenant against Employee Not Enforceable

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In a potentially significant case, the Minnesota Court of Appeals held that a non-solicitation agreement was not enforceable because it did not include specific reference to consideration in exchange for the agreement not to solicit within the agreement. The case, JAB, Inc. v. Naegle, resulted in the employee’s non-solicitation agreement being unenforceable.

Under basic principles of contract law, a contract (including an agreement for a non-compete or non-solicitation) requires consideration. This means that both parties receive something in return–here, the employer received the agreement not to solicit employees after the employee left the company, but the agreement did not provide anything to the employee in return. The important rule from Naegle is that, when a contract that cannot be fully performed within one year (such as a two year non-solicitation agreement), then the contract must include express reference to the consideration within the contract or it is not enforceable.

Click here for a copy of the full Court of Appeals decision. If you have questions about a non-solicitation agreement, a non-compete agreement, or any other employment law questions, please contact Teske Katz Kitzer & Rochel today for a free consultation.

 

Supreme Court Recognizes Constitutional Right to Marriage Equality

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Today, the United States Supreme Court agreed that the Constitution granted the liberty “to define and express their identity” by “marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” The groundbreaking decision, available here, recognized that the personal choice of who to marry is “inherent in the concept of individual autonomy,” a central concept of the Fourteenth Amendment’s protections of life, liberty and property. Justice Anthony Kennedy, writing for the Court, eloquently summed up the matter in his concluding statement:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say that they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The Minnesota Human Rights Act has long recognized the right to equal treatment of individuals regardless of their sexual orientation and sexual identity. It is illegal for an employer to discriminate against an employee based on the employee’s sexual orientation, self-image, and identity. In fact, recognizing that discriminators often try to stigmatize people based on sexual orientation and identity, Minnesota law also prohibits discrimination based on perceived sexual orientation and identity. And, if an employee complains about sexual orientation discrimination, Minnesota law protects them from retaliation.

For more information about the impact of the Supreme Court’s ruling, or employment law protecting the LGBTQ community, please contact us.

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.