Trump's Double Wednesday Wallop to LGBT Workers

By morning, the president attacked via tweet. By afternoon, he attacked via legal brief.

At the end of Wednesday, his Administration had scratched each letter in LGBT, and clawed at workplace protections for millions of Americans.

President Trump started his Wednesday tweeting that transgender soldiers were no longer allowed in the military, a fiat the Chairman of the Joint Chiefs of Staff said is not yet enforceable. (Apparently, the president was not aware a tweet did not equal an official government directive.)

Later in the day, the president’s lawyers at the Justice Department filed a legal brief that argues federal law does not protect gay and lesbian employees from workplace discrimination. The Justice Department’s anti-LGBT position is directly opposed by another federal agency, the Equal Employment Opportunity Commission (EEOC), which filed its own brief in favor of sexual orientation protections, a position the EEOC has had for years.

So how could two parts of the federal government read a major piece of federal legislation so differently? The answer lies in the Civil Rights Act of 1964’s words: It prohibits workplace discrimination “based on sex.” But the Act never defined “sex,” so courts have had to, and they are not in agreement. Enter the Justice Department on Wednesday.

The Trump Administration’s anti-LGBT stance reverses the Obama Administration’s evolving interpretation that expanded the number of Americans protected by the Act. Eventually, this unfair mess will likely get resolved by the nine justices of the Supreme Court.

Fortunately, Minnesota employees live in a state with robust workplace protections for LGBT workers. It is illegal for employers to discriminate based on an employee’s sexual orientation or gender identity. Period. Minnesota is ahead of the federal government, but we hope the feds catch up. But as Wednesday demonstrates, they won’t anytime soon.

Minnesota Law Trumps the President's Anti-Transgender Agenda

When President Donald Trump gets angry, he moves his thumbs on his smartphone. His tweets have targeted many, from the media to his own Attorney General. But at 7:55 a.m. Wednesday his target was inexplicable: soldiers who have risked their lives to defend his very right to speak/tweet.

The “United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” thumbed the Commander-in-Chief on his phone (rather than issue a statement or speech). While President Trump tweeted that he made the decision with the “consultation” of military leaders, the Pentagon seemed surprised by the decision.

We expect transgender employees in Minnesota are not only surprised by the decision, but also angry, distraught, and worried about their own employment rights.

We are here to offer some peace of mind.

Minnesota prohibits discrimination on the basis of one’s gender identity. The Minnesota Human Rights Act protects transgender employees under its definition of “sexual orientation,” which includes “having a self-image or identity not traditionally associated with one’s biological maleness of femaleness.” Further, the cities of Minneapolis and St. Paul both have ordinances that specifically protect people based on their “gender identity.”

Looking at federal law, the Equal Employment Opportunity Commission (EEOC) had concluded transgender employees are protected under the Civil Rights Act of 1964; the EEOC reached this conclusion using the logic that discriminating against someone who is transgender is akin to the law’s prohibition against discriminating “because of sex.” However, the Trump Administration believes the Civil Rights Act does not protect workers based on their sexual orientation or gender identity. Therefore, federal protections remain in question.

Transgender employees still face tremendous challenges, including access to appropriate restrooms and harassment. And under the Trump Administration, it does not appear the federal government will be acting to make life easier.

Questions? We’re here to help and counsel.

Court allows medical-marijuana user fired for positive drug test to sue company

The legal protections for workers who use medical marijuana continue to expand following a decision by a court in Massachusetts.

Here’s what happened: A Massachusetts woman, suffering from Chrohn’s disease, was a legal user of medical marijuana and accepted a job offer. However, the company later fired her when she failed a drug test. This week, an appellate court ruled the woman has a right to sue the former employer for disability discrimination under state law.

Here’s why the case matters: Massachusetts, like Minnesota, requires employers to provide “reasonable accommodations” to workers with disabilities. The employer argued that allowing the worker to use medical marijuana outside of the office was not a reasonable accommodation because marijuana remains illegal under federal law. Not so, said the court, pointing out any risk of getting arrested under federal law was on the woman’s shoulders, not the company’s. So now we have a major court ruling that companies cannot simply fire a legal medical marijuana user for failing a drug test.

But wait, there’s more (at least in Minnesota): Unlike Massachusetts, Minnesota already has strong protections in place for legal medical marijuana users. For example, the state’s medical marijuana statute says an “employer may not discriminate against a person in hiring, termination, or any term or condition of employment” based on a worker’s enrollment in the medical marijuana program or positive drug test result. Therefore, assuming Minnesota courts follow the logic used by the Massachusetts court, Minnesota workers legally using medical marijuana now may have protections under both discrimination laws and the medical marijuana law.

A few caveats: Medical marijuana users still cannot use marijuana at work or show up under the influence. Also, some companies must keep drug-free workplaces in order to keep their licenses because of certain federal laws or regulations; these companies can probably make the case that allowing workers to ever use medical marijuana is not a reasonable accommodation for them.

One more thing: We’ve only mentioned state laws in this blog post. There’s also a federal anti-discrimination law, called the Americans with Disabilities Act (ADA), that provides almost identical protections for workers with disabilities. However, because marijuana remains illegal under federal law, don’t count on the ADA to require employers to provide “reasonable accommodations” to medical marijuana users. For now, it seems state laws are the sole sources for protections.

Legal wisdom comes from more than law books

Legal wisdom comes from more than law books. Right now, Attorney Ted Haller is reading A Little Life by Hanya Yanagihara. In the book, there’s a great lecture by a fictitious law professor about the importance of contracts:

“Contracts are not just sheets of paper promising you a job, or a house, or an inheritance: in its purest, truest, broadest sense, contracts govern every realm of law. When we choose to live in a society, we choose to live under a contract, and to abide by the rules that a contract dictates for us—the Constitution itself is a contract, albeit a malleable contract…”
— A Little Life by Hanya Yanagihara

We love this passage because employment law certainly can concern contracts, including onerous noncompetes. But employment law is mostly about the unwritten contract between employer and employee that our society depends on. The employee will work hard and honestly, in exchange for the employer providing a paycheck and fair treatment. When the employer is not fair—when the employer discriminates, retaliates, harasses—then the employer has breached the unwritten contract.

And that’s where we come in, to make the employee whole again, or at least as whole as law and life allow. In A Little Life, the professor goes on to say, “You will learn about the obligations we have to one another as members of society, and how far society should go in enforcing those obligations.” At Haller Kwan LLP, we believe our goal is to ensure society is, in fact, enforcing those obligations.

Ben Kwan recognized as Rising Star by Super Lawyers

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

“This recognition validates the work we do each day helping employees who have experienced wrongs,” Kwan said. “And it reminds me why Ted and I made the decision to open our own practice focused on being strong lawyers and counselors.”

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

Case reveals another landmine in noncompete contracts (updated)

UPDATE: On June 29, 2018, the Minnesota Supreme Court reversed the pro-employer decision by the Court of Appeals. The Minnesota Supreme Court held: "Although a court may, in its discretion, grant equitable relief consistent with the terms of a private agreement, private agreements cannot compel a grant of equitable relief." This is good news for employees signing noncompete clauses—just because an employer says working at a competitor would cause it irreparable harm doesn't mean it's so. Read the opinion here.

Add another landmine to the long, and growing, list of reasons to tread very carefully before signing noncompete clauses in employment contracts. The latest: Your old employer can legally stop you from working at your new, competing job--as long as the contract says so.

The ruling comes from a Minnesota Court of Appeals case published on Monday, July 10th. A jury decided an employee violated his noncompete after he left one Minnesota medical-device maker to work at another. Normally, the penalty is damages (money) when an employee violates a noncompete.

But in this case, the noncompete allowed the previous employer to take things one step farther and block the employee from continuing to work at the new job. However, the trial judge said the previous employer could not stop him because he wasn’t causing the company “irreparable harm.” Those two words—irreparable harm—are important because that’s the typical standard judges use to decide whether they can make someone do, or not do something, what courts call “injunctive relief.”

But remember we told you this noncompete had some special words. Here they are: “In the event Employee breaches the covenants contained in this Agreement, Employee recognizes that irreparable injury will result” and the company “shall be entitled to an injunction to restrain the continuing breach by the Employee…”

Because of that language, the employer appealed the trial judge’s decision, arguing the employee contractually agreed he would be causing irreparable harm if he violated the noncompete, allowing the company to stop him from continuing to work at his new job. The Court of Appeals agreed with the former employer, making it clear employees have another reason to treat noncompetes so very carefully.

What does this all mean for you? It means if you sign a contract admitting you would cause irreparable harm by violating a noncompete, then your previous employer might have a big weapon in its arsenal. And this is why it is always wise to consider asking an attorney to review your noncompete agreement before you sign it.

Kwan Selected to State Bar Association's Labor & Employment Section Governing Council

MINNEAPOLIS  — Haller Kwan LLP Managing Partner Ben Kwan was named to the Minnesota State Bar Association's Labor & Employment Section Governing Council on Tuesday night at the L&E Section's annual dinner at Target Field. Kwan will serve along with 11 other members of the employment bar including lawyers from both the defense and plaintiff bars.

Kwan is Featured Speaker at Stinson Diversity Scholars Reception

Haller Kwan LLP Managing Partner Ben Kwan speaking at the April 24 Stinson Leonard Street Diversity Scholars Reception. Kwan is an alumnus of the program.

MINNEAPOLIS — Haller Kwan LLP Managing Partner Ben Kwan was the featured speaker at the Diversity Scholars Reception at the Minneapolis office of the national law firm of Stinson Leonard Street.

Kwan is a former Stinson Diversity Scholar and recipient of a law school scholarship provided by the Stinson firm. The firm for years have devoted a large amount of money towards scholarships fir diverse law students at each of the Twin Cities law schools. 

The law firm asked Kwan to speak at the April 24, 2017, event as an alumnus and local bar leader. Kwan is serving as the President of the Minnesota Asian Pacific American Bar Association for 2016-2017. 

Kwan told the audience that the firm's commitment to diversity and inclusion through deeds and dollars was instrumental in his career, allowing flexibility because he was not burdened by as many law school debts. 

Kwan Participates in Panel for FBA Young Lawyers Division on Success in First Years of Practice

MINNEAPOLIS — Haller Kwan LLP Managing Partner Benjamin Kwan participated in the Federal Bar Association Young Lawyers Division (FBA YLD) inaugural “Emerging Professionals Conference” on April 6. The event served as the kick-off to the FBA YLD’s Minnesota mentorship pilot program.

Benjamin Kwan was part of a panel discussion focused on how to create success in the first years of practice, including strategies for time management, and whether work-life balance actually exists. The panel also included FBA President Elect Kip Bolin, FBA Younger Lawyers Division Chair Glen McMurray, Sybil Dunlop, and Lauren D’Cruz.

Kwan Co-Authors the Employment Law Chapter in Minnesota CLE Deskbook

MINNEAPOLIS — Haller Kwan LLP founding partner Ben Kwan recently co-authored the latest edition of the Employment Law Primer, a comprehensive guide to employment law included in the Minnesota Continuing Legal Education desk book, Representing the Ongoing Business. 

Kwan co-authored the Employment Law Primer with employment defense lawyer Colton Long of Seyfarth Shaw LLP in Chicago, an employment bar colleague and occasional worthy adversary on litigation matters.  Kwan and Long updated and augmented the Primer to include more information on pitfalls for employers. Kwan brought the plaintiffs' lawyer's perspective to the work, which is intended to instruct everyday business attorneys on advising their clients on employment law matters.

"Our work as plaintiffs' employment attorneys will never be done so long as there are still human beings reporting to work everyday," Kwan said. "If we can contribute to our body of local legal scholarship in a way that prevents problems from ever happening, we're contributing to the greater good."

Kwan and Long will host a one-hour live webcast for attorneys on the topic of employment law through Minnesota CLE on Tuesday, February 14, 2017.

Ben Kwan is the co-founder and Managing Partner of Haller Kwan LLP. He advocates on behalf of employees and those thrust into a whistleblower role. He believes in the role of lawyer as counselor and remains steadfast in improving the lives of his clients. Ben writes and speaks on employment law issues as well as issues critical to the practice of law like diversity and inclusion.

Kwan Takes Helm of Minnesota's Asian American Bar Associaton

MINNEAPOLIS — Haller Kwan LLP Managing Partner and founder Ben Kwan took the helm of the Minnesota Asian Pacific American Bar Association today, the start of the affinity bar's calendar year. As President of the association, Kwan leads a community of more than 200 Asian Pacific American lawyers, judges, and law students in the state of Minnesota. 

Kwan leads MNAPABA's Executive Board of eight other board members in advocacy work and programming through September of 2017. 

Speaking at MNAPABA's annual gala in September, Kwan committed his presidency to encouraging service among MNAPABA's members—service to one another, the legal profession, and most importantly, to the community, especially those in need.

At the gala, MNAPABA honored the association's founding members and noted that the group had come a long way since its early meetings at Chinese restaurants like the old Village Wok in Dinkytown.

Kwan explained that, but for the service and mentorship of many in the room packed full of 300 attendees,  the son of a cook at the Village Wok (Kwan's dad cooked at the Village Wok in the 1970s) could not be standing up at the podium about to assume the presidency of the state's Asian American bar association.

Before this year, Kwan served on the MNAPABA board as Secretary, Vice President of Communications, and most recently, President-Elect.

Ben Kwan is the co-founder and Managing Partner of Haller Kwan LLP. He advocates on behalf of employees and those thrust into a whistleblower role. He believes in the role of lawyer as counselor and remains steadfast in improving the lives of his clients. Ben writes and speaks on employment law issues as well as issues critical to the practice of law like diversity and inclusion.