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Governor Walz’s Recent COVID-19 Order Gives Employees Important Rights

On May 13, 2020, Minnesota Governor Tim Walz issued Executive Order 20-54, in response to the COVID-19 pandemic crisis. Among other things, the Governor’s executive order provides rights to Minnesota employees that all workers should be aware of.

First, the executive order prohibits employers from discriminating or retaliating against employees who ask their employers questions or expresses concerns about COVID-19 (the Coronavirus), or their health and safety regarding the virus outbreak.

Second, the executive order generally prohibits employers from discriminating or retaliating against employees who wear gloves, cloth, eye protection, or other protective gear in the course of their work.

Third, the executive order gives employees the right to refuse to work under conditions that they, in good faith, reasonably believe pose an imminent danger of death or serious bodily harm.

Fourth, the executive order gives employees the right to request the Minnesota Department of Labor and Industry (“DLI”) conduct an inspection of their workplace if they suspect a COVID-19 threat to health and/or safety is present.

Lastly, the executive order gives employees the right to seek reasonable accommodations related to COVID-19, including the ability to work from home, if possible.

All of these protections contain important caveats, so if you have questions about Executive Order 20-54, or COVID-19 at work, you should contact an experienced employment lawyer.

If you are an employee who has experienced difficult circumstances with your employer related to COVID-19, we are here to help. Please contact Teske, Katz, Kitzer, and Rochel, PLLP. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower related issues in the workplace.

Can A Whistleblower Keep Work Documents If She Is Terminated?

Employees who report illegal conduct by a company may be whistleblowers. A whistleblower may be entitled to substantial monetary awards for reporting fraud and is generally protected from retaliation. If whistleblowers do experience retaliation, they may have additional legal claims.

Frequently, when an employee discovers fraud at work or by their employer, they may seek to copy or retain documents to prove the fraud or seek legal advice. There are many documents that may be relevant, even necessary, to prove a whistleblower claim. Emails, invoices, statements, letters, or many other types of documents could show that a company acted unlawfully and may be able to prove a whistleblower claim.

However, the law is complicated regarding what information a current or former employee may be allowed to retain or copy. First, most employees have some type of agreement prohibiting them from keeping company information (which is typically defined very broadly and could include nearly any company document). Employees should always review any agreement they signed to understand their obligations. If an employee keeps documents they are not allowed to have, they could potentially be sued by their employer.

Second, state and federal law may prohibit employees from making copies or retaining certain categories of documents. Examples include trade secrets or communications protected by the attorney-client privilege. There are many more examples and the law in this area is complex.

While there are many agreements and laws that limit what documents or information employees are allowed to retain, whistleblowers have special protections. One example includes the “whistleblower immunity” contained in the U.S. Defend Trade Secrets Act of 2016 (“DTSA”). The DTSA contains an express carve-out for whistleblowers who disclose trade secrets to attorneys for the purpose of seeking advice about potential whistleblower claims. Under the right circumstances, an employee cannot be liable under the act for doing so.

One of the bill’s sponsors, Senator Charles Grassley, explained: “Too often, individuals who come forward to report wrongdoing in the workplace are punished for simply telling the truth. The amendment I championed with Senator Leahy ensures that these whistleblowers won’t be slapped with allegations of trade secret theft when responsibly exposing misconduct. It’s another way we can prevent retaliation and even encourage people to speak out when they witness violations of the law.”

At the same time, employees must be very careful about what information they retain, the manner in which it is retained, and to whom they disclose any such information. We strongly encourage employees and whistleblowers to seek legal advice from an experienced attorney before taking any action or retaining any documents that could be protected, trade secret, confidential or the like. If you have questions or would like to learn more, contact us today.

What to do if you experience sexual harassment at work

By now, nearly everyone has heard of the #metoo movement, an effort to fight back against the widespread prevalence of sexual assault and harassment, especially in the workplace. The movement has highlighted the reality that sexual harassment is very common at work. The laws prohibiting sexual harassment are complicated and, unfortunately, there are aspects that hurt victims of sex harassment. For instance, a recent article in the Star Tribune discusses the many hurdles that victims of sexual harassment can face in the courts.

Still, nobody should be forced to endure sexual harassment at work. The more employees talk about sexual harassment and fight back against it, the more we can all do together to help put an end to it.

Here are some tips for what to do if you are experiencing sexual harassment at work:

  • Report it. This is not everyone’s immediate response. Many victims who contact us fear reporting harassment for several reasons. Sometimes the harasser is their boss or a boss’s friend. Or, sometimes a victim believes that reporting harassment to human resources will result in more harassment or retaliation. These concerns are valid and confirmed by thousands of cases across the country. Indeed, we routinely represent victims who report harassment and experience retaliation. Still, the law presumes that employees who experience sexual harassment would, and should, report it. If you report sexual harassment, your employer cannot retaliate against you for doing so. Reporting harassment gives your employer the opportunity to correct the illegal behavior. If it does so, that is good. But, if it fails to do so—or worse—punishes you for reporting it, then it will be legally liable.
  • Do not quit. Many employees who experience sexual harassment want to quit rather than face the unbearable conditions at work. Being forced to work with a harasser, or in a workplace where harassment is condoned is awful. The problem is, if you quit, an employer may have no liability for the harassment or retaliation they caused. The law gives employers several defenses for harassment and retaliation claims. This is a complicated area of law, but, taken overall, the law frequently rewards companies when an employee quits his or her job. Employers can claim that they did not take any action against an employee who quits. Or, an employer may argue that an employee who quits caused their own harm or “damages,” meaning that an employee cannot sue in court to recover for the illegal conduct.
  • Do not confront your harasser. While the law can have hurdles for victims of harassment, you are generally not required to directly confront a harasser. You should follow your employer’s policy to report the harassment. If there is no policy, then report it to human resources or to another boss.
  • Do something—don’t let the harassment get worse. This might seem obvious, but many victims of sexual harassment avoid the problem, minimize the behavior, or just hope that it will stop or go away. Federal law and Minnesota law are clear: No employee should have to put up with sexual harassment. Report harassment right away, and, when in doubt, contact an experienced employment attorney about your options. In our experience, if an employee hopes that harassment will stop but does not do anything about it, the situation gets worse, not better.
  • If you see someone else experiencing harassment, report it. The law also protects employees who report that a coworker is being sexually harassed. Of course, you want to be mindful of your coworker’s wellbeing. But employees should not be forced to endure a workplace where sexual harassment is allowed at all.

These are only some of the many factors to think about if you or someone you know is experiencing sexual harassment. It bears repeating that employment law, especially regarding sexual harassment, is complicated. You should always seek legal advice as soon as you suspect you or another employee are experiencing sexual harassment.

At Teske, Katz, Kitzer & Rochel, we fight for employees everyday, and hope that the current spotlight on sexual harassment helps put an end to a pervasive and disgusting problem facing too many workers today. Contact us to learn more.

8th Circuit Reverses Summary Judgment on FMLA Claims

The Eighth Circuit reversed summary judgment on an FMLA entitlement and discrimination claim.  In Hudson v. Tyson Fresh Meats, Inc., the Court found that sufficient evidence of FMLA discrimination and interference existed to allow the matter to proceed to trial.   ___ F.3d. ___, 2015 U.S. App. LEXIS 8479 (8th Cir. May 28, 2015).  

Plaintiff Delbert Hudson was fired after taking a short leave for back problems and depression.  Hudson’s girlfriend, also an employee at Tyson, told Hudson’s supervisor that he would be absent for a few days, and Plaintiff texted his supervisor about being out. When he returned to work, Hudson was fired for failing to call in each day pursuant to company policy.  Hudson sued for FMLA interference and discrimination.

The district court granted summary judgment on both claims, and the Court of Appeals reversed.  First, the Court held that Tyson failed to restore Hudson to the same or similar position after his leave, as required by the FMLA.  Tyson argued that it “returned Hudson to his normal job duties for a person Human Resources was investigating,” but the Court rejected that argument because Tyson failed to cite any authority to support its legal theory.

Next, the Court held that Hudson FMLA discrimination claim should go to trial.  Specifically, the Court held that Tyson’s shifting reason for termination (first for failing to provide notice, then for not providing notice in the appropriate manner), and evidence suggesting Tyson did not consistently enforce the call-in policy could convince a jury that its alleged reason for termination was a pretext to discrimination.

The decision can be found here.  The FMLA entitles employees to take legally-protected leave, and protects employees from discrimination and retaliation for excercising rights under the FMLA. In addition, many states (including Minnesota) have passed their own versions of leave laws that may afford even more protections than the FMLA. If you have questions about the FMLA, or any other employment law issue, contact Teske Katz Kitzer & Rochel

Teske Katz Kitzer & Rochel Defeats Summary Judgment in MHRA Disability Claims

In Oliver v. MCTC, Teske Katz Kitzer & Rochel attorney Brian Rochel, along with co-counsel Michelle Dye Neumann, successfully argued against the employer’s motion to dismiss Ms. Oliver’s Minnesota Human Rights Act claims. Ms. Oliver suffered a disabling injury at work and alleged that she was terminated because of her disability, and because she requested reasonable accommodation for her disability. The Minnesota District Court denied the motion, ruling that a jury could find in Ms. Oliver’s favor on her claims. The case will now proceed to a jury trial.

The court’s opinion is important because it held that Karst v. F.C. Hayer Co, 447 N.W.2d 180 (Minn. 1989), a case long used by employers to fend off liability for disability discrimination, did not apply to Ms. Oliver’s claims. In doing so, the court narrowed the application of Karst and called into question whether it is still good law.

Teske Katz Kitzer & Rochel Defeats Pretrial Motion to Dismiss, Court Limits Karst Ruling

In Jason Lindner v. Donatelli Bros. of White Bear Lake d/b/a Donatelli’s, the United States District Court for the District of Minnesota denied Defendant’s motion to dismiss Plaintiff Lindner’s retaliation claim. In an important opinion of first impression, the court held that Karst v. F.C. Hayer Co, 447 N.W.2d 180 (Minn. 1989), which bars discrimination claims in certain cases, does not apply to retaliation or reprisal claims.  The court noted that “a reprisal claim is fundamentally different [than a disability claim] – such a claim is predicated not on an employer’s injury (or disability), but rather on his or her conduct.” Lindner’s claims will now proceed to trial before a federal jury.

Phillip Kitzer and Brian Rochel represent Plaintiff Jason Lindner in the employment retaliation and discrimination lawsuit.