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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 second 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.
Haller Kwan LLP’s Managing Partner, Ben Kwan, indulged his first love, journalism, this summer and contributed a freelance piece for Minnesota Lawyer published last week.
In The Minnesota legal fight that changed the course of the gay rights movement, Kwan takes a look at a “family that nearly wasn’t” and the legacy of a landmark legal case and where the cases’s litigants are three decades later.
Thirty years ago on August 7th, thousands of LGBT rights activists and supporters took to the streets in 21 cities across the country for “National Free Sharon Kowalski Day.” The day became a flashpoint in the gay rights movement as a Minnesota woman fought for her right to care for and make decisions for her partner of four years, who had been severely injured by a drunk driver—and whose family later barred her partner from even seeing her.
A few years later, after a grueling legal battle, a landmark Minnesota Court of Appeals ruling overturned years of court-sanctioned “bigotry,” according to the lawyer representing the lesbian woman fighting for legal guardianship of her partner, and offered a new refrain for the gay rights movement—that same-sex relationships “ought to be accorded respect.” That was a landmark notion in 1991. My, how far we have come as a society.
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?
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:
“A week after the eclipse drew our eyes to the sky, Texas is looking up again, this time to the emerging sun. For all the suffering, there are images of hope, heroism and healing in a bitterly torn country. Perhaps Harvey has swept away some of things that divide us. Maybe this week it’s the darkness that’s eclipsed by the sun.”
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.