Our Ted Haller, a former broadcast journalist, still gets the journalism itch. Recently, he authored an article for Minnesota Lawyer on the U.S. Supreme Court decision about a Colorado baker who turned down a same-sex couple.
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.
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.
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.
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.
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.
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 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:
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).
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?
- 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.
- 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.
- 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.
- 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.
- 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.”
Finally, Texans are seeing the sun. That said, we have already witnessed many moments of light in Houston. Joe Fryer, our friend and an NBC News correspondent, said it best:
Eclipsing that darkness have been the thousands of Americans volunteering to help. But what sort of help, or protections, do these volunteers get from their employers?
In Minnesota’s private sector, disaster-relief volunteers don’t have many assurances that their jobs will remain when they return to work. A few states do have special laws on the books for trained volunteers. New Jersey law, for example, states “no employer shall terminate, dismiss or suspend an employee who fails to report for work at this place of employment because he is serving as a volunteer emergency responder during a state of emergency declared by” the president or governor.
In Minnesota, protections for disaster-relief volunteers are mostly reserved for public employees. State employees who are certified by the American Red Cross can volunteer for 15 days each year, and still receive their entire paychecks while helping, if their state employer grants the leave. In Hennepin County, trained county employees can volunteer for up to 15 days each year, and receive half of their paychecks while doing so. (Always check with your supervisor before leaving to volunteer.)
Additionally, a federal law, called the Uniformed Services Employment and Reemployment Rights Act (USERRA), protects Americans serving in the military, including the National Guard. USERRA requires employers to ensure members of the uniformed services return to the jobs and benefits they had before getting deployed. In other words, the tens of thousands of National Guard members getting deployed to Texas cannot be discriminated against because of their service.
Now, the law is one thing. Doing the right thing is another. We’re heartened to see businesses donating tens of millions of dollars to Hurricane Harvey relief efforts. Businesses can also help by changing their employment policies to protect employees who volunteer for disaster relief—at least making it clear the employees can return to their jobs and seniority status.
Minnesota is home to some of the most generous companies in the world, and we suspect many are willing to discuss volunteer possibilities with trained employees. Perhaps Minnesota law should reflect this generosity.
Hostility in the workplace is so prevalent that roughly one in five Americans say they’ve experienced it. The finding is part of a study released Monday by researchers at the Rand Corporation, Harvard Medical School, and UCLA. The researchers say the figure is “disturbingly high.”
The first-of-its-kind survey of 3,000 American workers details findings about the prevalence and distribution of working conditions across the American workforce by age, gender, and education.
While initial news coverage of the survey’s findings this week is focused on the 20 percent of workers who’ve experienced hostility in the workplace, we noticed another statistic worth attention: more than one-half of American workers report that they are “exposed to unpleasant or potentially dangerous working conditions” like vibrations, loud noise, extreme temperatures, smoke, fumes, powder, dust, or vapors, or chemical products or infectious materials “one quarter of the time or more at work.”
That’s a lot of Americans who think they’re being subjected to potentially hazardous environments at work. The study’s findings don’t examine what happens to workers who raise concerns about these prevalent dangers. This raises important questions about what American workers are doing about the dangers and whether they know they can speak up about them without penalty.
State and federal occupational health and safety laws require safe working environments. Beyond that minimum requirement, various state and federal laws go farther to protect employees who speak up and report concerns about potential workplace hazards.
For example, here in Minnesota, the Minnesota Whistleblower Act protects employees from retaliation when they report unsafe conditions at work that they suspect violate laws and regulations. So long as the report is made in good faith (not knowingly false or in reckless disregard of the truth) and there are actual workplace safety laws implicated by the belief that conditions are or may be unsafe (OSHA rules, for example), employers cannot punish employees for raising the concerns.
In another recent blog post, we discussed the difference between illegal and unfair-but-not-necessarily-illegal hostile work environments. For the one in five Americans facing hostility in the workplace the key question to tell the difference is, “why?” If the hostility is based upon the employee’s membership in a protected class (age, gender, national origin, race, religion, disability, sexual orientation, service member, etc.), then there’s an argument it’s illegal hostility. If, as we sometimes say, the hostility is happening because of an “equal opportunity jerk,” it’s harder to argue the practices are illegal.
If an employee suspects the hostile treatment is based on his or her membership in a protected class (or is blatantly illegal, like the study’s findings on unwanted sexual attention or harassment), and the employee reports his or her concerns to the employer, the employer cannot penalize the employee for doing so. Just like the anti-retaliation provisions of the Minnesota Whistleblower Act, Minnesota state law contains anti-reprisal provisions for reporting illegal harassment or treatment based on one’s membership in a protected class.
The Rand study released this week also contains a few bright notes on the state of the American worker and workplace. For instance, more than one-half (58 percent) of American workers describe their boss as supportive, and 56 percent say that they have very good friends at work. While those numbers could be even higher, they support the notion that work is a place where many find a lot of meaning. So when something goes awry at work, it’s okay (and important) to seek help—work is such a huge part of our lives. If you're interested in talking to us about a situation at work, book a free phone consultation.
Employers across the country are firing employees they believe may be sympathetic to white supremacy groups. Fox 9 asked Attorney Ben Kwan whether these firings are legal.
A Minneapolis restaurant has fired two employees whose photos—showing them clad in Nazi garb and brandishing white supremacy paraphernalia—were circulating on social media Tuesday. The restaurant took to Facebook to stem a growing movement to boycott the establishment absent a response.
“The Uptown Diner unequivocally repudiates the beliefs and ideals of neo-Nazis and white supremacy,” the Uptown Diner posted on Facebook. “Hate and bigotry have no place in society. We are committed to fostering an inclusive, welcoming environment at our restaurant and in our community.”
So do employees like them have a claim for wrongful termination? It’s not the type of case we’d take for both moral and legal reasons.
As a practical matter, the employees’ purported activities and behavior are morally repugnant to us, and our professional code of conduct for lawyers allows us to decline representation where “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”
Legally, these employees would have a steep, if not impossible, road to recovery if they decided to sue the Uptown Diner for wrongful termination.
But wait! What about our freedom of speech and freedom of expression guaranteed by the Constitution? That’s where the Uptown Diner alleged Nazis provide a cautionary tale to everyone—even those inclined to speak out out on less controversial topics in private workplaces.
Freedom of speech is one of the most deeply held tenets of our society. We hear the phrase “freedom of speech” used all the time in all kinds of contexts. What’s lost in those conversations, most of the time by everyday people, is that the Constitutional guarantee of free speech only applies to the government and its powers to limit speech. The Constitution doesn’t say what private employers can and can’t do when it comes to speech.
To put it simply: constitutional freedom of speech doesn’t apply in the private workplace when it comes to broadcasting your personal views and beliefs (public employees might have options, so if you’re reading this and feel you’ve been targeted because of speech in a public workplace, you should talk to a lawyer about your situation).
At best, the Uptown Diner employees, accused of being Nazis on account of their online photos, might try to argue that they’ve been fired on account of their political views—if they could even call their actions and speech expressions of political views. Even then, there aren't many legal avenues to pursue.
Like many states, the Minnesota Human Rights Act does not explicitly list communicating on political matters as a protected category for which employers may not discriminate. In Wisconsin, however, an employer may not discriminate on the basis of “ participat[ion] in any communication about … political matters.”
The Uptown Diner example highlights the competing societal interests we often fail to appreciate. We value freedom of speech and we also value workplaces that are free from discrimination—in the broadest possible ways. That’s why we’ve seen recent examples of free speech advocates standing up for folks who’ve been dismissed by their employers for taking highly controversial views.
Coming up with the "right" result forces us to confront that we're walking a fine line on these competing values.
If there’s one important lesson here: watch what you say at work when it comes to expressing your personal views and beliefs. You could be fired for it and, depending on the topic and context, you may not have legal recourse (important caveat: in most cases, you can’t be fired for who you are when it comes to your religion, gender, sexual orientation, race, etc.—so if that’s the real reason and your alleged “speech” is a cover-up for one of those reasons, call a lawyer).
Is the White House a hostile working environment? The chief of staff, Reince Priebus, might think so. News reports describe the new White House communications director, Anthony Scaramucci, calling Priebus a “paranoid schizophrenic,” among much more colorful language.
For a fun (we think) Friday lesson in employment law, let’s pretend the White House sits in Minnesota, and is subject to Minnesota state laws, as well as federal laws. And let’s pretend the White House is not the home of the President, but a company that manufactures cheap bronzers. And we’ll say an employee named Reese is frequently called names by a guy named Tony.
Can Reese sue the White House for creating a hostile work environment? The short answer is Reese probably does not have a good case. Here’s the long answer that explains why.
First, hostile work environment laws are rooted in discrimination laws. That means the employee must be harassed based on a “protected class,” like age, race, gender, sexual orientation, gender identity, or disability. (FYI: sexual orientation and gender identity are protected classes under Minnesota statutes, but not federal statutes.)
Reese, a 45-year-old, straight white man, might be protected if the harassment is based on his age. He also might be protected if he has a disability, or perceived one, and the harassment alludes to it, like calling him a “paranoid schizophrenic.” However, assuming the harassment is not based on one of those protected classes and is more generalized bullying, Reese might have a hard time arguing he has a legal claim.
Next, the harassment must be “severe or pervasive.” That’s a high burden. Reese would need to show the harassment was so awful it altered the conditions of his job. Lawyers representing employers like to quote a Supreme Court case that said federal civil rights laws are “not a general civility code.”
Finally, Reese would need to show he notified a boss, and the boss did nothing to stop the harassment. For this imaginary scenario, let’s pretend the boss was not only aware of the harassment, but also encouraged it (and was quite notorious for his own bullying behavior). In that case, Reese would satisfy this step of the analysis.
The long and short of this is when you hear the words, “hostile work environment,” you might think laws forbid workplace bullying. However, workplace bullying is usually only illegal when it’s rooted in discrimination. Nevertheless, a lawyer might be able to help find other legal or practical solutions to stop unacceptable workplace behavior.