Is it legal to fire me if I fail a drug test?

Probably not at first!

Minnesota has some of the strongest protections for employees when it comes to drug and alcohol tests. Sometimes the drug test itself might be illegal.

When can an employer drug test me?

An employer can legally test you:

  • before you start a job (so long as you received a conditional offer of employment)

  • if there’s a “reasonable suspicion” you’re under the influence of drugs or alcohol

  • if you got hurt on the job

  • if you were in a work-related accident

  • if you caused a work-related accident

When is it illegal for an employer to drug test me?

An employer cannot:

Can an employer fire me after a positive drug test?

Not if it’s your first failed test.

If you failed a drug test for the first time, then your employer needs to offer you the chance to attend drug or alcohol counseling or rehabilitation (at your own expense).

However, your employer can fire you if you refuse counseling or rehabilitation, or if you fail another drug test after participating in rehabilitation or counseling.

What if I have questions about my employer’s drug testing? Or what if I got fired after taking a drug test?

Minnesota’s drug testing laws are complex, but usually helpful to employees. In other words, it’s very easy for employers to break the law when it comes to drug and alcohol testing.

You are welcome to book a free, 20-minute consultation with an attorney at Haller Kwan LLP by clicking this link.

When is sex harassment illegal?

Many people are surprised to learn that courts don’t consider all sexual harassment illegal. In fact, before a sex harassment case goes before a jury, a judge usually first needs to decide whether the allegations of harassment are “severe or pervasive.”

If a judge decides the allegations are severe or pervasive, then you are entitled to a jury trial.

What is “severe or pervasive” sexual harassment?

“Severe or pervasive” is just legalese for saying the sexual harassment was really bad or happened a lot—enough to alter the working conditions for the employment relationship to become abusive.

Okay, then what is really bad—or a lot of—harassment?

Minnesota lawmakers define sexual harassment to include:

  • Unwelcome sexual advances

  • Requests for sexual favors

  • Sexual contact

  • Sexual communication

Of particular concern is when the sexual harassment is required for the job or to get a promotion.

How do judges typically decide whether someone’s conduct is sexual harassment?

Historically, and very unfortunately, judges have often dismissed allegations of sexual harassment that most people would find shocking. Courts would sometimes chalk up the conduct to an “unsuccessful pursuit of a relationship,” or just “immature” or “boorish” or “chauvinistic” behavior.

But not anymore.

Judges—especially Minnesotans—are catching up with the times thanks to an important case that went up to the Minnesota Supreme Court.

Why are sexual harassment claims easier to pursue now?

In 2020, every single justice on the Minnesota Supreme Court signed off on an opinion that basically instructed Minnesota courts to get with the times.

In that case, called Kenneh v. Homeward Bound, Inc., the justices said sexual harassment standards “must evolve to reflect changes in societal attitudes.” And the justices even acknowledged that people today “would likely not tolerate the type of workplace behavior that courts previously brushed aside.”

How are today’s sexual harassment cases decided?

Under the new standard created by the Minnesota Supreme Court, judges must look at “all the circumstances” regarding the sexual harassment to decide whether the conduct was severe or pervasive.

Is there anything else important to know regarding sexual harassment cases?

There’s a lot to know, and that’s why it’s helpful to reach out to a lawyer. For example, employers can sometimes get cases dismissed based on whether they had a chance to stop the harassment. In short, it can get complicated.

 What should I do if I want to learn more about whether I have a sexual harassment case?

 Feel free to book a free, 20-minute consultation with a lawyer at Haller Kwan LLP by clicking this link. All conversations are strictly confidential.

Ted Haller talks COVID-19 vaccine employment issues on FOX 9

Attorney Ted Haller appeared on FOX 9’s Morning News to answer employment questions about the COVID-19 vaccine, including:

  • can employers require workers to get vaccinated?

  • what happens if an employee refuses to get the COVID-19 vaccine?

  • are there any protections for workers with disabilities?

  • do employees with religious objections have any rights?

Ted Haller is a regular FOX 9 contributor, hosting the legal segment, “Is it Legal?”

Ted Haller & Ben Kwan Named Rising Stars by Super Lawyers

Haller Kwan LLP is grateful to announce that attorneys Ted Haller and Ben Kwan have been designated Rising Stars by the research team at Super Lawyers. It is the fourth year in a row Ben Kwan has been named a Rising Star.

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.

C. Ted Haller
Rated by Super Lawyers


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Benjamin Kwan
Rated by Super Lawyers


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Breaking: Supreme Court Makes LGBTQ Non-Discrimination in Employment Law of the Land

In a 6-3 ruling, the United States Supreme Court ruled on Monday that it is illegal to discriminate against workers in the U.S. based on their sexual orientation or gender identity.

The court held that an “employer who fires an individual merely for being gay or transgender violates Title VII.” Title VII, the landmark 1964 civil rights law, bars discrimination based on “sex” and the court has ultimately ruled that “sex” and one’s sexual orientation or gender identity are inextricably linked and therefore the protections of Title VII extends to LGBTQ workers.

Download the Court’s opinion here. The majority opinion was penned by conservative-appointee Justice Neil Gorsuch and joined by Justices Roberts, Breyer, Kagan, Ginsburg, and Sotomayor.

The ruling is significant because not every state has state-level protections for gay and transgender workers like Minnesota does under the Minnesota Human Rights Act. This ruling ensures that Title VII, a federal law, will be applied consistently in every state to protect against employment discrimination based on gender identity and sexual orientation.

Employment Protections for Nurses and Doctors on the COVID-19 Frontlines

Minnesota’s nurses and doctors are being asked to prepare for catastrophe—COVID-19 patient influxes that exceed hospital capacity in the event statewide stay-at-home measures do not “flatten” or even “bend” the curve.

Healthcare workers are rightly being heralded as heroes across the country. They are going to work lacking sufficient protective gear—masks, gowns, respirators, face shields—to treat patients and save lives.

These healthcare workers are taking selfless risks in carrying out their missions. Some are nevertheless starting to justifiably sound the alarm about their own safety as they continue to do their heroic work.

Yesterday, New York Times columnist Nicholas Kristof wrote about a Seattle-area doctor who spoke up about his hospital’s lack of protective gear and then got fired. The doctor had worked at that institution for 17 years.

THE PROBLEM: A SYSTEMIC LACK OF PREPAREDNESS

Weeks before the president of the United States acknowledged that social distancing should be practiced to limit the community spread of COVID-19, nurses were already sounding the alarm about examples of huge system failures in American healthcare and preparedness.

Today we know that our nation’s health care heroes—nurses, doctors, and the countless hospital staffers who support their work—are battling COVID-19 in conditions that are not only less than ideal, they are downright dangerous. We have all seen the accounts:

SEEN AS A PROBLEM: HEALTHCARE HEROES WHO SPEAK UP ABOUT SYSTEM FAILURES

The California surgeon who told the New York Times she “worried about retribution” for telling the paper that she lacked access to basic surgical masks during the COVID-19 crisis was right to worry. Retaliation for speaking out has been known to happen—it’s why the federal government and state governments have enacted protections for whistleblowers who speak truth to power on critical issues like basic protections for healthcare workers during crises like this pandemic.

LEGAL PROTECTIONS FOR HEALTHCARE HEROES WHO SOUND THE ALARM ON PREPAREDNESS

Health care workers battling on the frontlines of COVID-19 are protected by the law in some critical instances for speaking up about their employers’ lack of preparedness when it comes to their safety.

  • Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act) prohibits employers from retaliating against employees for exercising a variety of rights guaranteed under the OSH Act, such as raising a health and safety concern with their employers, participating in an OSHA inspection, or reporting a work-related injury or illness.

  • Parallel protections exist under Minnesota state laws—”MN OSHA”—prohibiting retaliation for raising health and safety concerns with their employer.

  • The Minnesota Whistleblower Act protects all employees from reprisal because they reported actual, suspected, or planned illegal activities to their employers or to a government agency.

Under these laws, various employer reprisals constitute illegal actions—things up to and including termination, but also: blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failure to hire or rehire, intimidation, making threats, reassignment affecting prospects for promotion, or reducing pay or hours.

IMPORTANTLY: under the state and federal occupational safety and health acts (OSHA) employees only have 30 days after learning of the retribution to file a formal complaint with the appropriate department of labor agency. This is a tight window to take advantage of a very meaningful means of recourse. Pursuing recourse under the Minnesota Whistleblower Act, however, has a six-year statute of limitations.

Affected healthcare workers should nevertheless act as quickly as possible to take advantage of all possible avenues, including the OSHA remedies.

FREE PHONE CONSULTATIONS FOR HEALTH CARE WORKERS, EXTENDED HOURS

Our attorneys are offering extended and free phone consultations to healthcare workers who need employment law consultations during COVID-19, including consults outside normal business hours and on weekends.

Nurses, doctors, and other healthcare workers affected by retaliation or any other suspect employer activity relating to the COVID-19 crisis can schedule a consult for any time that works for them by clicking the button below:

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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