Media Resources: Tonya M. Sconiers v. Duluth Public Schools, et al.

On Monday, September 9, 2019, Haller Kwan LLP filed a lawsuit in federal court on behalf of its client, Tonya M. Sconiers, the former Principal of Denfeld High School in Duluth, Minn., against Duluth Public Schools and district leaders alleging wrongful termination in violation of the First Amendment, among other legal protections.

Media Downloads:

The Complaint filed in the United States District Court for the District of Minnesota on September 9, 2019—Sconiers v. Duluth Public Schools, Gronseth, and Horton

A written transcript of Principal Sconiers’ remarks to the community at the September 9, 2019, press conference announcing the lawsuit in Duluth, Minn.

Headshot—Tonya M. Sconiers, provided by Tonya M. Sconiers (low res) | (high res)

Media Contact:

For all media questions, please contact Attorney Ted Haller (ted@hallerkwan.com)

About Haller Kwan LLP:

Haller Kwan LLP is a law firm serving employees and whistleblowers across the state of Minnesota in the area of employment civil rights.

A Three-Peat: Ben Kwan Named Rising Star by Super Lawyers Again

Haller Kwan LLP is pleased to announce that Ben Kwan has been named a Rising Star by the research team at Super Lawyers for the third year in a row. Each year, no more than 2.5 percent of the lawyers in Minnesota are selected for the designation.

The Super Lawyer list is based on a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Benjamin Kwan
Rated by Super Lawyers


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Ted Haller emcees benefit for the Innocence Project

On November 13, Attorney Ted Haller had the honor of emceeing the Innocent Project of Minnesota’s annual Benefit for Innocence. It was Ted’s fourth time helping the organization as an emcee; he also regularly covered the Innocence Project while working as a television reporter for KMSP.

At the Minneapolis Event Centers, Ted spoke in front of a gathering of about 500 supporters of the Innocent Project, a nonprofit that works to free the wrongfully convicted and reform the criminal justice system to prevent wrongful convictions.

Ted expressed his gratitude for the organization’s staff and volunteers—and the thousands of hours of time devoted to helping those convicted of crimes they never committed.

In his remarks, Ted quoted comments Bruce Springsteen recently made about time: “Once you enter the adult life…and you choose your work, the clock starts ticking and you walk alongside not only the people you’ve chosen to travel with, but you walk alongside your own mortality and you realize you have a limited amount of time to do your work…to try and do something good.”

Ted Haller speaks at the Benefit for Innocence

Ted Haller speaks at the Benefit for Innocence

Ben Kwan recognized as Rising Star by Super Lawyers for Second Year in a Row

Haller Kwan LLP is pleased to announce that Ben Kwan has been named a Rising Star by the research team at Super Lawyers for the second year in a row. Each year, no more than 2.5 percent of the lawyers in Minnesota are selected for the designation.

The Super Lawyer list is based on a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.  

Benjamin Kwan
Rated by Super Lawyers


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Ben Kwan revisits landmark Minnesota LGBT court ruling for Minnesota Lawyer

Haller Kwan LLP’s Managing Partner, Ben Kwan, indulged his first love, journalism, this summer and contributed a freelance piece for Minnesota Lawyer published last week.

In The Minnesota legal fight that changed the course of the gay rights movement, Kwan takes a look at a “family that nearly wasn’t” and the legacy of a landmark legal case and where the cases’s litigants are three decades later.

Thirty years ago on August 7th, thousands of LGBT rights activists and supporters took to the streets in 21 cities across the country for “National Free Sharon Kowalski Day.” The day became a flashpoint in the gay rights movement as a Minnesota woman fought for her right to care for and make decisions for her partner of four years, who had been severely injured by a drunk driver—and whose family later barred her partner from even seeing her.

A few years later, after a grueling legal battle, a landmark Minnesota Court of Appeals ruling overturned years of court-sanctioned “bigotry,” according to the lawyer representing the lesbian woman fighting for legal guardianship of her partner, and offered a new refrain for the gay rights movement—that same-sex relationships “ought to be accorded respect.” That was a landmark notion in 1991. My, how far we have come as a society.

Thoughts on Work from The Boss

At Haller Kwan LLP, we often turn to our boss, The Boss, for wisdom on employment law. Recently, our firm had an important meeting with Mr. Bruce Springsteen in New York City; a few others showed up, too, since they also had purchased tickets for “Springsteen on Broadway” at the Walter Kerr Theatre.

Bruce working at Walker Kerr Theatre

Inside the small theater, Bruce joked that his Broadway show was the first real “five-day-a-week” job he ever had, then reflected on why so much of his music is about working nine-to-five jobs. Was his career based on a lie?

No. Bruce’s work about work, as he explained in New York City, and as he wrote in his autobiography, “Born to Run,” is shaped by witnessing his mom and dad—and their distinct relationships with their employers.

For Bruce’s mom, her decades-long relationship with her job at a law firm was strong and positive. Bruce wrote in his book, “She goes to work, she does not miss a day, she is never sick, she is never down, she never complains. Work does not appear to be a burden for her but a source of energy and pleasure.” (How we wish everyone felt this way about their jobs!)

For Bruce’s dad, his relationship with work was unhealthy. He struggled to keep a job, holding many over his life, usually ending the day in a dark kitchen: “the nightly religious ritual of the ‘sacred six-pack,’” Bruce wrote.

Our takeaway from hearing Bruce discuss the relationships with his mom (wonderful) and dad (challenging) is that you cannot ignore his parents’ other relationships: the ones with their jobs. Our jobs shape us, they affect us in profound ways regardless of our intent. And bad work relationships bleed into our personal lives. We see the impact of these relationships every day with our clients; and we see our own jobs as helping clients either repair broken relationships or ensure their “job divorce” is as healthy as possible, which usually means obtaining the money necessary for clients to feel peace and have the resources necessary to work to find new work.

Bruce describes work in “Badlands,” “you gotta live it every day. Let the broken hearts stand as the price you gotta pay, we’ll keep pushin’ ‘til it’s understood, and these badlands start treating us good.” In “Out in the Street,” his character works five days a week “loading crates down on the dock,” always looking forward to Friday “when I’m out on the street.” In “Factory,” a man “walks out in the morning light” to the factory gates where men walk “with death in their eyes.”

In other words, ones expressed less poetically than Bruce’s, work is usually hard—hard enough without employers breaking the law, hard enough without discrimination or harassment, or fears of retaliation.

In “Blood Brothers,” Bruce sings, “We lose ourselves in work to do and bills to pay. And it’s a ride, ride, ride, and there ain’t much cover. With no one runnin’ by your side.”

Running by your side. That’s our job.

 

 

 

 

 

 

 

 

 

Who Gets Whistleblower-Retaliation Protection in Minnesota?

The answer is broader than you might think.

It is illegal for employers in Minnesota to retaliate against any employee who has opposed illegal activities or reported actual, suspected, or planned illegal activities.

Photo by tupungato/iStock / Getty Images
Photo by tupungato/iStock / Getty Images

That’s a lot more to unpack than meets the eye.

Let’s start with what Minnesota law makes illegal: "[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee" because the employee is a whistleblower. The most common form of whistleblower reprisal we see is the retaliatory termination.  But the courts, all the way up to the U.S. Supreme Court, have ruled repeatedly that illegal retaliation can take many forms.  Quite simply, it’s a classic “smell test.” Courts will ask whether the employer’s action would dissuade or discourage another employee from reporting illegal activity; if it would, then that’s retaliation.

If you’re experiencing something that looks and feels like retaliation, the next step is determining whether the law protects the kind of activity you opposed or reported.

Under the Minnesota Whistleblower Act, employees are only protected when they’ve objected to or reported actual, suspected, or planned illegal conduct. The important thing there: the complained-about conduct must be illegal.  Not just unfair.  Not just unethical.  Not just arbitrary.  Not just a violation of company policy.  ILLEGAL.

Here’s the remarkable thing, though.  Employees who report concerns don’t need to be lawyers—they don’t need to use the magic word “illegal” when they report their concerns.  Employees only need to have reported—orally or in writing—facts, which if assumed true, implicate a violation, suspected violation, or planned violation of an actual law, statute, or regulation. It's up to the lawyers to find the actual law, not the whistleblower.

Another remarkable thing: the whistleblower is still protected by the law even if mistaken on the facts. In other words, if you think the company was breaking the law, but they weren't, yet they still retaliated against you for complaining, you are still protected.

Timing is Everything in Non-Competes, says Minnesota Court of Appeals

In November, the Minnesota Court of Appeals made a ruling that should be a reminder to all employers who use non-compete agreements to revisit the simple logistics of how and when they ask employees to sign those contracts.

Photo by mediaphotos/iStock / Getty Images
Photo by mediaphotos/iStock / Getty Images

It also gave lawyers for employees like us another powerful court ruling to combat the enforcement of non-competes issued by sloppy employers.

The Court of Appeals ruled in Safety Center, Inc., v. Stier that the employee’s non-compete agreement was wholly unenforceable because the contract was not “ancillary to” the employee’s employment agreement with the company. In case you didn’t catch it—there are two agreements or contracts to pay attention to in this lesson:  (1) the non-compete agreement itself and (2) the employee’s employment agreement with the company.

A fundamental rule about non-competes is that employees can’t agree to them without getting something in exchange. In contract law, you can’t get something for nothing.

Typically an employee gets a job in exchange for agreeing to a non-compete. He or she shows up at work on the first day and signs a non-compete. Assuming the non-compete is reasonable, no Minnesota court is going to later rule it unenforceable.

In other typical situations, employees accept written job offers that are made “contingent upon” signing a non-compete and perhaps other agreements when they show up for work.  No problem with this non-compete's enforceability, either.

Here’s where the employer in the Stier case went wrong—and where we assume other employers have erred, too.  In that situation, the employer made an offer of employment about a week before the employee’s start date.  The employer then sent a letter to the employee confirming “acceptance of the position.”  The letter discussed training, a start date, but made no mention of a non-compete. There were no contingencies mentioned—the job had been accepted. A week later, on the employee’s first day of work, the employer presented a non-compete which the employee, signed.  She worked there until 2015 when she left and went to compete, at which point she got sued.

The Court of Appeals eventually ruled that the non-compete was unenforceable because the non-compete was not “ancillary to” the employment agreement, which had been accepted a week earlier. Furthermore, since Stier was not given something additional for the non-compete on her first day when she signed it (i.e., money), the non-compete could not be held valid.

What is the lesson here? Before starting your job, if you signed a non-compete that wasn’t connected to your employment contract or agreement, the non-compete might not be enforceable.

At first blush, it may seem like a technicality.  But consider a hypothetical situation where an employee has been recruited to move across the country for a job.  If the job was accepted, and the employee undertook the burden of moving cross-country, would it be fair to enforce a non-compete against that person, who didn’t get a fair chance to bargain for it? No.

The takeaway here: timing is everything and employees who are burdened by a non-compete with a former employer would be wise to take a look back and see if the situation in the Stier case happened to them.

Attorney Ben Kwan Talks Sexual Harassment with Jearlyn Steele on WCCO-AM

Attorney Ben Kwan was interviewed by WCCO-AM’s Jearlyn Steele last Sunday night about the sexual harassment in the workplace following a flood of allegations nationally. Ben explained that the harassment cases we hear about in the media are just the tip of the iceberg, and he offered advice for victims of sexual harassment at work. Click this link to listen to the interview:

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New Protections for Airline Whistleblowers Land in Minnesota

Photo by Sitikka/iStock / Getty Images

Whistleblowers who work for airlines have new protections, thanks to a ruling by the federal appeals court with jurisdiction over Minnesota. The ruling on August 31, 2017, allows employees to sue as whistleblowers under the Minnesota Whistleblower Act when they get fired for reporting illegal airline conduct after it happened.

The ruling makes it clear that whistleblowers have the right to be free from retaliation after reporting concerns about “post hoc,” or, after-the-fact law violations—and, more importantly, the right to sue the airline-employer under state whistleblower laws when such retaliation occurs.

In Watson v. Air Methods Corp, the plaintiff, a flight paramedic, had sued Air Methods Corp. using Missouri’s common law whistleblower protections after making post hoc reports about safety violations and getting fired. The Eighth Circuit had to decide whether the federal Airline Deregulation Act trumped all state efforts to protect whistleblowers in the airline industry because that federal act expressly bars states from enacting or enforcing laws that have the “force and effect of law related to a price, route, or service of an air carrier that may provide air transportation . . . .”

The Eighth Circuit decided that the federal Airline Deregulation Act does not expressly preempt state whistleblower lawsuits alleging retaliation for reports of after-the-fact law violations.  Preemption is a court doctrine that creates divisions between what rights parties can pursue under state law versus federal law.  Sometimes courts rule that federal law trumps state law, making state laws completely unenforceable in some respects due to the “Supremacy” of federal law under the U.S. Constitution.

The Watson ruling overturned a 15-year-old decision that had limited state law protections for airline industry whistleblowers. Prior to Watson, airline employers used a 2002 Eighth Circuit case called Botz v. Omni Air International to argue that whistleblowers in Minnesota, Missouri, and other Eighth Circuit states simply could not bring their retaliation claims under their more-favorable state whistleblower laws because they were preempted by federal law.

Employees who get fired because of after-the-fact reports can now pursue state whistleblower actions. Those claims aren’t preempted because they don’t interrupt air carrier service—they’re happening after-the-fact, after all.

Employees who get fired for refusing to act because they believe the act would be illegal, however, will arguably still not have state whistleblower protections.

If you are an airline employee outside of Minnesota who has been retaliated against for reporting after-the-fact legal or safety violations, you should contact a lawyer to see how your state laws apply to you.  The recent Eighth Circuit decision deepened a so-called “circuit split” between the various federal appeals courts on this particular issue. The Supreme Court could take up the issue in the future and decide a different outcome or make the Eighth Circuit’s decision the law for the entire country. Until then, rights will vary based upon jurisdiction.

All employees—regardless of state law—also have the protections of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). Prior to the enactment of the law in 2000, aviation employees were not protected from retaliation if they reported possible safety violations or concerns. Under AIR21′s Whistleblower Protection Program, 49 U.S.C. Section 42121, employees can disclose aviation hazards without fear of reprisal. Federal law requires employees to act much faster—deadlines are quick so you must act fast if you’re a victim of retaliation. By comparison, Minnesota's state whistleblower law has a six-year statute of limitations (but anyone who's experienced retaliation should always act fast to protect legal rights). 

I just got fired. Now what?

It gives this lawyer heart palpitations just writing about it: a mysterious meeting appears on your Outlook calendar, or your supervisor comes by your desk and asks if you can “talk in the HR office.” You can feel it in your gut; something is not right. A few minutes later, your worst suspicions are proven right. You’re fired.

A termination can be as stressful and emotionally damaging as a divorce—especially when it comes as a surprise or under suspicious circumstances. And a termination is the ultimate power imbalance; the company firing you is big, might have lawyers, and possesses all the information. You are one person, and lacking clues that might explain your termination.

So what do you do?

Photo by {artist}/{collectionName} / Getty Images
  1. First of all, take a deep breath and know your life is not ruined. We have seen clients recover, and thrive, after climbing out of seemingly impossible circumstances. But that climb requires a strategy, and sometimes a lawyer.
  2. And that leads us to the second step: gather information and act fast. Minnesota law provides tools that aid in this endeavor. You have the right to request a letter explaining the reason for your termination. Your request must be made in writing (email is fine) within 15 working days of the termination, and the former employer then has 10 working days to respond. Next, request your personnel file. Your former employer then has a week to provide the file, and must do so for free.
  3. Investigate by comparing your termination letter and personnel file to your own experience and memory. Does something seem off? Do the criticisms in your records not square with comments made by your supervisor? Could your termination have less to do with your performance, and more to do with your age, gender, sexual orientation, national origin, or disability? Did you speak up about possible discrimination or illegal practices not long before you were fired? Did you try to take FMLA leave or seek an accommodation for a disability? Does an offered severance agreement seem unfair given your service to the company, or make unreasonable demands (like a non-compete clause)—or did you not receive any severance agreement at all? If the answers to any of these questions is “maybe,” then you should call an attorney. The law might protect you.
  4. Meanwhile, do not forget self-care. Make sure you are taking care of your health. Obviously, this means eating healthy, exercising, and avoiding excessive use of alcohol. But it also means maintaining health insurance. Your previous employer should send you a COBRA letter about continuing your health insurance. Make sure you get your paperwork done in a timely fashion if you will require continued health benefits. Also, take care of your finances, and start by filing for unemployment insurance.
  5. Finally, when the time is right and your head is in the right place, start seeking a new job. Sometimes just the work of pursuing work can ease the burdens of losing a job.

While the burdens of termination might feel like they will crush you, know you are in a position that is not unique. Not even close. Right now, likely thousands of Minnesotans are experiencing the exact same feelings of anger, sadness, betrayal, and injustice you might be feeling. And let us again say: we have seen it all. Life will get better. As Florence Welch sings, “it’s always darkest before the dawn.”