Minnesota Legalized Some Forms of Marijuana for Recreational Use-What Does that Mean for Employees?
In July 2022, Minnesota passed a bill to legalize certain kinds of marijuana for recreational use. The new law modifies Minnesota’s list of controlled substances to exclude “industrial hemp” products that contain no more than 0.3 percent of any form of THC. The law also allows individuals ages 21 or older to purchase edible and drinkable products containing no more than five milligrams of THC per serving and no more than 50 milligrams of THC per package.
You may want to celebrate by partaking in some of the new THC-infused products sold at your local store, but keep in mind there may still be employment consequences, depending on the type of job you have and the policies your employer has in place.
The Minnesota Lawful Product Consumption Act prohibits employers from refusing to hire a job applicant or discipline or discharge an employee because they have engaged in the use or enjoyment of products that are lawful for consumption, such as the THC-infused products which are now legal in Minnesota. However, if the use of these products could impair an employee in such a way that limits their ability to do their job, such as driving, there are exceptions to the Act.
If your employer or a prospective employer has not followed these legal requirements, or you have experienced retaliation for using lawful consumable products, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.
Brian Rochel Presents at CLE on Minnesota Employment Law
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.
Am I Protected If I Blow the Whistle at Work?
The Minnesota Whistleblower Act (MWA) protects employees who “blow the whistle,” in their workplaces. This means employees who refuse to engage in illegal activity at work or who report illegal activity. To prove a whistleblower claim in Minnesota, the employee must show (1) that they engaged in statutorily protected conduct; (2) that they suffered an adverse employment action; and (3) a causal connection between the two.
What activity is protected by the MWA?
Employees who report a violation, suspected violation, or planned violation of a state or federal law or rule to an employer or government official are protected under the MWA. Employees who are requested by a public body or office to participate in an investigation, hearing, or inquiry are also protected. The MWA also protects employees who refuse an order from their employer that they believe in good faith to be unlawful if they inform their employer that that is why they are refusing the order. The MWA also provides protections for employees who report substandard quality of health care services in a health care facility, provider, or organization. Public employees are protected if they communicate the findings of studies or reports that they believe to be truthful and accurate. Similarly, state government employees who communicate information relating to state services that they believe to be truthful and accurate to legislators or legislative auditors or constitutional officers are protected by the MWA.
In 2013 the Minnesota legislature amended the MWA to include additional, robust protections for employees who report unlawful activities. Specifically, the legislature amended the definition of “good faith” report to mean any report of suspected violations of the law as long as the reports were neither knowingly false nor in reckless disregard of the truth. Importantly, the 2013 MWA amendments also added protection for employees reporting common law violations from retaliatory discharge.
What is an adverse employment action?
A basic example of adverse employment action is termination of employment. However, the MWA prohibits any form of “penalizing” an employee, which includes anything that would dissuade a worker from reporting illegal conduct. This includes harassment, reducing pay, reducing hours, or other forms of penalizing a worker.
Constructive discharge is also an adverse employment action. This occurs “when an employer deliberately renders the employee’s working conditions intolerable, thereby forcing her to quit.” Whether the working conditions are intolerable is determined using an objective standard, considering whether a reasonable person in the same situation would find the conditions intolerable. Further, if an employee resigns because they think there is no possibility of fair treatment by their employer, this can constitute constructive discharge. This might occur if an employee reports illegal conduct or refuses to break the law, and their employer then makes working conditions intolerable for that employee. Subjecting an employee to a hostile environment can also be considered an adverse employment action.
How do I show a causal connection?
This simply means evidence that an employee was treated badly, or penalized, because the worker reported violations of law (or refused to participate in them). This evidence takes many forms. Statements from a manager, or treating workers differently are examples of proving retaliation. Courts have also found that close proximity between protected conduct and adverse employment action is compelling evidence of a causal connection. That means that if the adverse employment action occurred shortly after the protected conduct, there is likely a causal connection between the two. For example, if an employee reports a suspected violation of the law to their employer and they are fired the next day, it is likely that the two events are related, or causally connected.
What should I do if I my employer terminated my employment or retaliated against me for reporting violations or refusing to engage in illegal activity?
Contact us at Kitzer Rochel. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.
 Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995).
 Minn. Stat. § 181.932, subd. 1(1).
 Minn. Stat. § 181.932, subd. 1(2).
 Minn. Stat. § 181.932, subd. 1(3).
 Minn. Stat. § 181.932, subd. 1(4).
 Minn. Stat. § 181.932, subd. 1(5).
 Minn. Stat. § 181.932, subd. 1(6).
 Minn. Stat. § 181.931
 Minn. Stat. § 181.931, subd. 4.
 Tatum v. Ark. Dep’t. of Health, 411 F.3d 955, 960 (8th Cir. 2005).
 Gartman v. Gencorp, Inc., 120 F.3d 127, 130 (8th Cir. 1997).
 Dixon v. Mount Olivet Careview Home, Civ. 09-1099, 2010 WL 3733936 *8 (D. Minn. Sept. 17, 2010)
 Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998); Frieler v. Carlson Mktg. Grp., 751 N.W.2d 558, 570 (Minn. 2008).
 See, e.g., Dietrich, 536 N.W.2d at 327 (citing Hubbard v. U.P.I., Inc., 330 N.W.2d 428, 444 (Minn. 1983) (holding that causal connection requirement may be satisfied by the temporal proximity between protected conduct and adverse employment action)).
Does My Employer Have to Accommodate My Long-Haul COVID Symptoms?
COVID-19 has presented many questions for employers and employees. One set of questions surrounds “long COVID,” or “long-haul COVID.”
President Biden announced that the long-term effects of COVID-19 infection can in fact be considered a disability under the Americans with Disabilities Act (ADA). This likely would apply under Minnesota’s Human Rights Act (MHRA) as well.
This means that employees who were infected with COVID-19 and still suffer from symptoms such as respiratory problems, brain fog, chronic pain, and fatigue that rise to the level of a disability are protected under federal law. Such symptoms rise to the level of a disability if they substantially limit a major life activity such as work. Employees with a disability are entitled to reasonable accommodations in the workplace.
If you have questions about ADA accommodations, or if your employer is refusing to provide accommodations or discriminating against you because of a disability, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.
Brian Rochel Selected to Serve Three-Year Term on Minnesota NELA Board
Brian Rochel has been selected to serve as a Board member on the Minnesota Chapter of the National Employment Lawyers’ Association (MN-NELA). MN-NELA is a highly-respected organization of lawyers who are dedicated to advancing the rights of workers by providing information, education, and advocacy on behalf of employees. MN-NELA works to advance employee rights by influencing judicial lawmaking, legislative lawmaking, and educating the bench, bar and public on issues that affect workers’ rights.
MN-NELA has had a profound impact in the rights of employees over the past several decades. Its major achievements include amicus briefing at the Minnesota Supreme Court, helping draft impact legislation, and facilitating collaboration across hundreds of lawyers and law firms who represent employees and workers across the state.
Brian has been a member of MN-NELA since 2010, served on the Board from 2014-2017, and is proud to continue serving the organization.