Legal to fire workplace Nazis? You bet—it highlights limits on freedom of speech in private employment

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 work environment?

Photo of the Day: 7/12/17

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.

 

 

 

 

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.