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“We’re all familiar with that ubiquitous mantra, “If you see something, say something.” We usually hear that in the context of reporting suspicious or criminal activity in public — an unattended package left in a subway station, a person menacing or threatening others, or similar potential dangers.

But when employees discover their employers’ potentially dubious, unethical, or illegal conduct, there’s no 911 to call and no nearby police officer to flag down. Instead, those brave individuals who see something wrong at work and feel compelled to report and expose such misconduct — whistleblowers — face complicated choices and put themselves, their careers, and their reputations at risk.

That’s why it’s critical for potential whistleblowers to act thoughtfully, carefully, and deliberately before calling out their employers’ illegal activities. Doing so may optimize the possibility that the employer will change its conduct, but it may also be necessary to protect the whistleblower from the blowback that may come from their employers. Care also must be taken to preserve their right to recover compensation under any applicable federal or state law that rewards whistleblowers.

If you’re aware of illegal or wrongful conduct by your employer and are considering blowing the whistle, the most important thing you can do is meet with an experienced whistleblower attorney before doing so. A lawyer can inform you of your rights, advise you of actions to take, protect you from retaliation, and, in some instances, put you in a position to reap financial rewards for doing the right thing.

What Type of Conduct Do Whistleblowers Report?

A wide range of corporate activities can be the subject of a whistleblower claim. That’s partly because many laws and regulations govern the conduct of businesses in every sector of the economy. Consequently, companies can violate the law in countless ways.

Violations of an expansive range of laws and regulations can be the subject of a whistleblower claim, including:

  • Employment discrimination
  • Violations of health and safety laws
  • Government contracting and procurement fraud, including cybersecurity fraud
  • Defrauding Medicare, Medicaid, and related health care programs, including seeking reimbursement for unnecessary or unperformed procedures or improper medical coding and billing
  • Healthcare misconduct involving violations of the Anti-Kickback Statute and Stark Law (also called the “physician self-referral law”)
  • Financial, securities, and investment fraud
  • Tax fraud and evasion
  • Bank fraud
  • Customs fraud
  • Environmental and wildlife violations

What Evidence Is Needed for Whistleblowing?

Contacting a whistleblower lawyer as soon as possible after you discover and before you report illegal conduct is a wise first step. Here are other steps you should consider taking:

Gather Evidence

If you’ve learned about illegal or wrongful conduct by your employer, it’s likely because of something you saw, read, or heard at work. This is the evidence you’ll need to show authorities to support your assertions, and it’s the evidence they’ll use to take action against your employer that could lead to
money in your pocket.

Preserve emails, documents, photographs, or other materials that reflect or reveal the wrongdoing. Take notes of any conversations or incidents that relate to the conduct. It’s important to do so discreetly, not on work time or on work devices, and in a manner that doesn’t raise suspicion, violate company policies, or run afoul of the law. For example, you should only save documents to which you have access in the normal course of your work responsibilities. Your lawyer can advise you on how best to collect and preserve evidence.

Follow Internal Reporting Procedures

Many companies and organizations have established policies, procedures, and mechanisms through which employees can raise their concerns about their employers’ conduct. This may involve reporting to your immediate supervisor, the human resources department, or a designated ethics hotline or inbox. Ensure you maintain a record of all communications and actions taken.

Look for and Document Retaliation

In a perfect world, reporting illegal conduct through internal channels will result in your employer taking action to address the issue, including stopping the misconduct and holding wrongdoers accountable. But it’s not a perfect world. Employers often have less-charitable responses to a complaining or whistleblowing employee, and supervisors or other employees implicated in the misconduct can react viscerally to accusations made against them. An employer may engage in retaliation against you for your actions. This can take many forms beyond termination or demotion and can include receiving less-desirable assignments; being excluded from projects or meetings; receiving negative performance reviews; suffering harassment or abuse; and being placed on an unfair performance improvement plan.

Employer retaliation against whistleblowers is illegal under many circumstances, and employees subject to retaliation may have claims for compensation against their employers. Document instances of retaliation or any negative changes in your employment situation and share that information with your attorney.

Are Retaliation Claims Very Rare?

Unfortunately, whistleblower retaliation claims are not rare. However, employer retaliation against whistleblowers is illegal under many circumstances, and employees subject to retaliation may have claims for compensation against their employers. Document instances of retaliation or any negative changes in your employment situation and share that information with your attorney.

Work With Your Attorney to Report Misconduct to the Proper Authorities

When your attorney believes the time is right, he or she can help you report your employer’s illegal acts to the appropriate authorities. Many different whistleblower laws and programs apply to specific types of activities and industries. Your lawyer will know where to submit your information and how to do so in a way that makes you eligible to potentially recover a percentage of any amounts the government recoups from your employer, based on the information you provided. These rewards can be substantial. In fiscal year 2022 alone, whistleblowers who reported illegal activity under the False Claims Act (FCA) received $488 million. The FCA is only one of the many laws and programs through which whistleblowers can obtain compensation for their brave acts.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. After completing the form, one of our Intake Specialists will be your first point of contact. Well-versed in our firm’s practice areas, this professional will review your submitted form and direct your inquiry accordingly. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

Susan (1)
A Partner at Halunen Law, Susan Coler represents whistleblowers who challenge illegal corporate conduct, particularly fraud against the government. As an MSBA Labor and Employment Law Specialist, Susan has also brought successful retaliation claims in connection with FCA/qui tam cases and as stand-alone actions. Susan has consistently been named a “Super Lawyer” since 2008 and has been named several times on the Super Lawyer’s list of Top 50 Women Attorneys in Minnesota.

Shot of a young businessman suffering from a headache in a modern office at work

The first thing to do is to remain calm. While on leave, you should continue to receive pay and benefits. Take the time to understand your rights and obligations while on leave.

What is Administrative Leave?

Employers sometimes place an employee on administrative leave if there is a pending investigation into their conduct or into a complaint they submitted. The leave is usually initiated by Human Resources. There may or may not be a time frame on how long your leave may last. You may ask clarifying questions to get a better understand the length and reasons for placing you on administrative leave. You can also inquire as to your employment status while on leave.

What is your employer investigating?

Being the subject of an investigation or submitting a complaint that initiates an internal investigation can be stressful and scary. Most employers conduct investigations under an umbrella of confidentiality. This is normal investigative process, and you may not get much information about the investigation or its status. Employers investigate allegations of misconduct or other legal violations all the time. They are obligated to conduct investigations fairly and may seek counsel to ensure they are doing it appropriately. In this process, the employer will determine who they interview and when. Don’t be surprised if your employer doesn’t give you information and may not acknowledge if or whether it will contact any people you may have suggested they contact.

What if I see the leave as retaliatory?

Retaliation is prohibited in the workplace, but sadly it happens all the time. If you believe being placed on leave is in retaliation for engaging in a protected activity, such as reporting illegal harassment, safety violations or fraudulent conduct, it would be wise to consult with an attorney experienced in retaliation and whistleblower law.

What should I do on leave?

Be an excellent employee and conduct yourself in compliance with the policies of the company. You should respond promptly to employer requests and cooperate with the investigation. It may be prudent for you to request a copy of your personnel file and review company policies to ensure continued compliance with them.

Here are some ways to keep in contact with your employer without escalating anything:

  • Keep your contacts with your employer in writing and neutral. Sarcasm may be tempting, but hardly ever helps the situation.
  • Focus on understanding the process, not inflicting blame.
  • Set boundaries without emotion. “I’m happy to discuss this in a meeting. Please include HR,” or “I’d like to respond after I’ve reviewed this in writing.”
  • If you’re emotional, draft → wait → edit. It may feel good to get your frustrations out on paper, but always step back and rewrite your communication at a time when you are more calm. If you do seek legal representation in the future, the tone of your communications will come into scrutiny, so always write thoughtfully, instead of emotionally.

What should I not do?

Being put on administrative leave can cause anger and outrage, especially if you perceive the leave as being unjust or retaliatory. It is not helpful to confront your employer, do anything that could create more animosity, or post your frustrations on social media. It is also a good idea to avoid talking to other employees. If there is an urge to try to access files and folders that you SHOULD NOT have access to, suppress it. You still must comply with all company policies, even if you believe you are treated unfairly.

What are my rights on leave?

You should still receive pay and benefits, but you should look at your employee handbook for the specifics on how your organization handles administrative leave. You should also be treated fairly as compared to other employees. We’re here to help you navigate your rights under Minnesota law and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

GettyImages-524176874 (1)Not long ago, it seemed there was constant news coverage of the #MeToo movement. This period led to open dialogues and more awareness of sexual harassment and assault, including in the workplace. However, it was unclear how behavior may change in the workplace and whether employers would see improvements. Now, there’s data that shows these abuses are still all too common.

According to Tulane University’s #MeToo 2024 Report, consisting of survey data from over 3,300 adults in the United States, 37 percent of women and 14 percent of men believe they have experienced sexual harassment or assault in the workplace at some point. A figure that’s equally concerning? Nearly nine out of 10 of individuals experiencing sexual harassment or assault have not disclosed their experiences.

Workplace sexual harassment and assault continue to affect a significant number of employees. Many endure these experiences in silence, unsure of what constitutes harassment or assault, and what legal protections they may have. Understanding the definitions, examples, and legal protections related to workplace sexual misconduct is essential and can help provide an early roadmap to getting the justice you deserve.

What Is Workplace Sexual Harassment?

Sexual harassment in the workplace refers to unwelcome conduct of a sexual nature that interferes with an employee’s ability to do their job, because the harassment creates an intimidating, hostile, or offensive work environment. Examples of sexual harassment in the workplace include:

  • Inappropriate comments, text messages, or emails
  • Sexual advances made by a co-worker or manager
  • Requests for sexual favors with an offer of a job, promotion, or favorable treatment (sometimes called quid pro quo harassment)
  • Retaliation from an employer based on the termination of a sexual relationship

Sexual harassment and assault can occur in more than the physical workplace. It can occur through texting and phone calls, in virtual meetings, during business travel, and at work-related and employer-sponsored events offsite.

A workplace harasser may be a supervisor, co-worker, client or even a non-employee with some connection to the company. An example of a non-employee harasser could be a capital investor who has no formal role within the company or a vendor or salesperson doing business.

When Does Workplace Sexual Harassment Become an Assault?

When sexual harassment turns into unwanted physical contact it may become an assault.
Examples of sexual assault include:

  • Unwanted physical actions, such as groping or touching
  • Physically restraining or forcing a company worker to engage in a sexual act
  • Threatening someone into a sexual activity
  • Any sexual act performed on a person who does not consent, even if they are intoxicated, unconscious, or otherwise incapacitated

Your Right to a Workplace Free of Sexual Misconduct

Sexual misconduct is inappropriate in every workplace and employees in most states who experience sexual harassment or assault in the workplace are entitled to certain legal protections provided by their state and/or federal law. These laws vary from state to state, and their applicability may depend on the size of the employer.

For example, under Minnesota’s strong Human Rights Act, employees have the right to:

  • Report harassment or assault to their employer,
  • Expect an investigation that’s fair, prompt, and thorough, and
  • Not face retaliation or some type of negative reaction for making a complaint

Path to Justice: Next Steps if You Were Harassed or Assaulted in the Workplace

If you are experiencing workplace sexual harassment, and if you are able to do so, a first response is to tell the harasser to stop and make it clear that the conduct is unwelcome. Documenting what happened (outside of work time and work devices) is also important and will be helpful if the conduct does not stop. You should include:

  • Dates, times, and locations
  • What was said or done
  • Who was involved, and
  • Whether there were any witnesses

After a single incident, or especially If the harassment persists after you told the harasser to stop, a next step is to report the conduct to your employer, using whatever policies are in place at your employer. This may mean contacting your supervisor, HR department, or another individual designated to handle workplace complaints. If the harasser is your supervisor or HR contact, escalate the report to another senior leader.

If you have experienced a workplace sexual assault, your first step is to get to a safe place away from the perpetrator. Depending on the circumstances, you may then need to get medical attention and/or report to law enforcement. You also will need to report the assault to your employer, as discussed above.

During this time, it’s helpful to write down everything you remember about the assault and preserve any supporting evidence, which may include emails, text messages, voicemails, or photos of inappropriate conduct.

Seeking support as soon as possible is critical. Some available resources are identified in the FAQs below.

How an Employment Law Firm Can Help

If you’ve experienced sexual harassment or assault in the workplace, a common mistake is to try and navigate the legal system alone. Instead, you want an experienced attorney who can help you understand your rights, evaluate your options, and take action when necessary. Whether you are facing retaliation for reporting the harassment, facing a hostile work environment, or emotionally distressed after harassment or an assault that could have been prevented, a plaintiff’s employment law firm can help you understand your options and guide you through the legal steps needed to reddress what happened—steps that may include reporting the misconduct to your employer and other authorities, filing charges, and filing a civil lawsuit against your employer for damages.
Halunen Law is known for fighting aggressively on behalf of their clients and standing up to employers of all sizes. From helping you seek compensation for emotional distress, lost wages, and other damages to holding employers accountable for failing to protect their employees, our attorneys will help restore your voice and dignity as you navigate the next chapter of your life.
Through legal action, remedies an attorney can help you get may include:

  • Back pay and/or a promotion
  • Reinstatement within the company
  • Compensatory and punitive damages
  • Attorney and court fees and costs

Show Strength, but Don’t Go It Alone

It takes courage to speak up and seek out justice. You deserve an experienced employment law firm on your side that’s committed to justice while advocating fiercely for your rights. At Halunen Law, we are here to listen, support, and advocate for you.

If you’ve experienced sexual harassment or assault in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.
We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a safer and more fair workplace for everyone.

Frequently Asked Questions

Can I be fired for reporting sexual harassment?

It’s illegal in many states, including Minnesota, for an employer to retaliate against you or someone else for reporting harassment. Retaliation can take many forms including unwarranted disciplinary action, demotion, and termination, as well as more subtle conduct such as shunning, or exclusion from meetings. Should retaliation occur, you may have grounds for a separate legal claim.

What if my employer ignores my complaint?

Minnesota employers have a legal requirement to address workplace harassment once they receive a report or observe it themselves. If your employer fails to take action or investigate your harassment claim, you may have a basis for filing a state or federal charge or lawsuit.

How long do I have to file an employment claim?

This can vary from state to state, and depends on the circumstances. It is wise to consult with an attorney as soon as possible to determine the time frames that may apply to you. Generally, in Minnesota you have one year from the date of the last incident to file a lawsuit or a claim with the Minnesota Department of Human Rights (MDHR). Claims under federal law go to the Equal Employment Opportunity Commission (EEOC) and the time frame in Minnesota is 300 days. (In some states EEOC charges must be filed within 180 days). If you work for the federal government you are subject to a 45 day timeframe for filing an EEOC charge.

What if the harassment happened outside of work hours or offsite?

If misconduct is connected with your job in any way, it can still be workplace harassment—even if it happened off company property, outside normal working hours, or through texts or phone calls. So, if the harassment took place during business travel, at an offsite work event, or with co-workers or management outside office hours, you still have the right to a safe, discrimination-free work experience.

What resources are available to victims of sexual assault in the workplace?

  • Local and national sexual assault and rape crisis centers, e.g. Sexual Violence Center 24/7 hotline, 612/871-5111; National Sexual Assault Hotline-1-800-656-4673 or hotline.rainn.org.
  • If offered by your employer, an employee assistance program (EAP).
  • Employment attorneys with experience representing victims of sexual assault.

Misclassification in Trucking, Courier, and Delivery Services
Employee misclassification is pervasive across the United States, particularly in the trucking, courier services, and delivery industries. Employers frequently classify workers as “independent contractors” (ICs) rather than employees. This allows companies to save millions annually by sidestepping their legal obligations to pay withholding taxes, provide workers’ compensation and unemployment insurance, pay overtime, and reimburse vehicle maintenance and fuel. It also makes it easier for companies to avoid paying benefits like health insurance and providing rest breaks. This practice denies workers the rights and protections they deserve and means less income and no access to critical protections like workers’ compensation or unemployment insurance.

Amazon Flex Drivers: Misclassification and Employee Status
Amazon Flex drivers have become a focal point in the national conversation on worker misclassification. Flex drivers use their personal vehicles to deliver packages, operating under Amazon’s control and policies. While Amazon classifies them as independent contractors, a growing body of legal and agency decisions have concluded otherwise.

Consistent with this trend, lawsuits have been filed, for example, in states such as California, Massachusetts, and Washington, where Amazon Flex drivers have alleged misclassification and sought damages for:

  • Unpaid Overtime: Drivers frequently work more than 40 hours per week without receiving overtime pay.
  • Denied Rest Breaks: In states like California, drivers allege Amazon violates laws requiring meal and rest breaks.
  • Unemployment and Workers’ Compensation Coverage: Misclassified drivers are excluded from these critical safety nets.
  • Expense Reimbursements: Flex drivers must cover the cost of fuel, vehicle maintenance, tolls, and other work-related expenses, which drastically reduces their earnings.

Other companies facing independent contractor issues, like Amazon, include FedEx, OnTrac, USPak, and Swift.

Good News for Minnesota Workers: New Protections Under Minnesota Law

Minnesota recently enacted one of the best, if not the best, statutes in the country protecting workers from being misclassified as independent contractors.  Effective July 1, 2024, Minnesota Statute § 181.722 substantially strengthened protections for Minnesota workers in industries where misclassification is prevalent, including trucking, courier, and delivery services.  The statute prohibits anyone from entering into an independent contractor agreement that misrepresents the true nature of the parties’ relationship. It also imposes a per-violation penalty of up to $10,000 for those seeking to cut costs by entering into illegal independent contractor agreements with potential workers.

Key Changes to the Law:

  1. Stricter Classification Standards: Employers must now prove that the independent contractors they employ are genuinely independent. That is, they must demonstrate that the independent contractor operates a business separate from the employer and free from the employer’s control.
  2. Expanded Enforcement: The Minnesota Department of Labor and Industry (DLI) now has enhanced authority to investigate and enforce misclassification claims. Workers can also bring private lawsuits to recover damages and injunctive relief, meaning actual changes in how the employer treats its workers.
  3. Increased Penalties: Employers who misclassify workers face substantial penalties, including liability for unpaid wages, benefits, and tax contributions.
  4. Transparency in Contracts: Independent contractor agreements must clearly outline the nature of the relationship and provide detailed disclosures about the worker’s rights and obligations.

These changes empower workers and create significant risks for employers who continue to misclassify employees.

Why This Matters

Misclassification deprives workers of basic rights and protections while allowing companies to cut costs unfairly. Minnesota’s strengthened law represents a critical step in holding employers accountable. Truck drivers, couriers, and delivery workers—especially gig workers like Amazon Flex drivers—are now in a stronger position to fight for fair treatment.

What You Can Do

If you’re a truck driver, courier, or delivery worker working under an independent contractor arrangement—whether you work for Amazon Flex or another company—it’s vital to evaluate whether your classification status is legal. Signs of misclassification include:

  • Being required to follow strict schedules and routes set by the company.
  • Covering all work-related expenses, such as vehicle maintenance, fuel, and insurance.
  • Being denied access to benefits like overtime pay, health insurance, and workers’ compensation.
  • Having a contract that labels you as an IC but closely resembles an employment relationship.

Our legal team has extensive experience litigating high-profile misclassification cases, including cases against industry giants like FedEx. If you suspect you’ve been misclassified, we can help you fight for the wages, benefits, and protections you deserve.

Contact Us Today

If you believe you’ve been misclassified, we encourage you to contact our firm. When you call us at 612-605-4098 or submit a Case Review Form, your first point of significant contact will be with one of our Intake Specialists. Well-versed in Halunen Law’s practice areas, these professionals will listen to your concerns or review your Case Review and direct your inquiry accordingly. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your rights under Minnesota law and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

 

This office space is filled with productivity
Shot of a group of businesspeople working in an office

You found a work-from-home routine that meets your needs, you’ve been a productive remote or hybrid employee, and you were hoping the working arrangement would become permanent. We get it. There’s tension, as you like your setup and don’t want to see it changed.

Unfortunately, many employers feel differently. According to Resume Builder, which surveyed 1,000 organizational stakeholders in 2023, 90 percent of participants say their company plans to return to the office by the end of 2024. Nearly 30 percent of those companies may threaten to fire employees who won’t comply with return-to-office mandates. This raises the question: Can you be forced to return to the office or be fired by your employer if you don’t comply? 

Your (Lack of) Legal Options

If you are concerned about returning to the office, your options are likely limited. Except in rare cases, return-to-office mandates do not qualify as harassment or discrimination, meaning an employer can require you to work in the office.

Can You be Fired for Not Returning to the Office?

In many instances, yes. Most employees in the United States work at-will, which means their employer can terminate them for any legal reason, at any time, without facing liability. If you work at-will, your company can update their terms of employment without consequences or notice, meaning they can say you must work from the office to continue your employment. 

If you have already been terminated by your employer, and think it was wrongful, read our page on wrongful termination for more information.

Can I Refuse to Return to the Office?

Employers may set their own workplace policies, including where, when and how you work. Unless your employer hired you in a role specifically designated as a remote position, you have a contract in place, or you have a disability that requires accommodation, options are limited. 

However, even with a contract, your preferred working arrangement may not be recognized by your employer unless you have a severance provision or some other type of enforcement clause that guarantees a remedy in the event of contract breach or termination. Otherwise, an employer can choose to terminate your employment and move on to a candidate who is more amenable to working in the office. 

If you have a disability, you have protections afforded to you if your state has disability protection laws, like that in Minnesota, and under the Americans with Disabilities Act. You’ll find more information in our section on Workplace Disability Discrimination.

If a return-to-office mandate impacts you negatively, you may have legal grounds to challenge your employer. Otherwise, the vast majority of U.S.-based employees are obligated to work where their employer tells them to. 

Your Non-Legal Options

Given this lack of legal options, if you want flexibility in returning to the office, you may have leverage with your employer — especially if you have rare skills and are in an industry with a job market that favors employees over employers, meaning you could have several businesses lining up to hire you if you left your company.

The general consensus among employers is that returning to the office improves productivity and profitability, and is good for company culture. On the other hand, many employers also understand the perks of working from home and have reasons to want to retain employees. As a result, many companies are taking a hybrid approach, requiring employees to return to office two to four days a week, instead of the full five. In fact, some employers are even offering benefits to help cover commuting and childcare costs to make this happen.

Instead of threatening to quit over a return-to-office mandate, you are likely better off trying to negotiate an accommodation, salary increase or one-time bonus, especially if you work in a competitive industry where your skills are in demand. Perhaps your manager can be flexible about which days you need to be in the office, or they can offer additional perks, like increased PTO or a more robust benefits package to help ease the burden and inconvenience of your increased office time.

If you’re at a business that’s experiencing healthy growth, it may also be a good time to negotiate a salary increase or one-time performance bonus. Good timing and a tactical approach are critical. If you can point to strong reviews, a diverse and invaluable skillset, and a recent list of accomplishments to justify your request, you may have leverage to position yourself for more money. You may not get the exact answer you want to hear, but your employer might give you a counteroffer that was worth all your effort.

But make sure your timing is thoughtful. If your company or industry is going through a period of layoffs, and low or no profits, this may not be the time to push for more benefits or money. 

In the end, your employer may require you to return to the office, and that, without more egregious or illegal acts, generally does not constitute discrimination or a hostile environment. But thinking creatively about how to present your situation may persuade your employer to accommodate some of your requests. 

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

 

On May 20, 2024, the Minnesota legislature passed a groundbreaking bill aimed at tackling the prevalent issue of employer misclassification fraud. This pervasive problem, which affects workers across Minnesota and many other states, involves employers incorrectly classifying workers as independent contractors rather than employees. This misclassification allows employers to evade paying employee benefits, protections, and compensation such as overtime pay, workers’ compensation, earned sick and safe time, and more.

Key Provisions of the New Law

The new Minnesota law grants misclassified employees the right to sue for proper classification as employees if they can prove they meet the state’s recognized tests under workers’ compensation or unemployment laws. For all industries except construction, Minnesota’s Department of Labor and Industry (DOLI) uses the state’s Workers’ Compensation or Unemployment Compensation test to determine if a worker is an independent contractor or employee. These tests focus on five factors:

  1. The right to control the means and manner of performance.
  2. The mode of payment.
  3. The furnishing of tools and materials.
  4. Control over the premises where the work was done.
  5. The right of discharge.

For Workers’ Compensation, DOLI also refers to 34 different tests based on the industry in which the individual works. See 5224 – MN Rules Chapter.

The general tests to determine proper classification often include the following criteria:

  1. The company controls the means and manner in which the worker performs their job.
  2. The work performed is essential to the company’s business.
  3. The worker is not required to make any independent investment in the work.
  4. The company provides the primary tools and resources necessary to complete the work.
  5. The worker has limited ability to make any profit or suffer any loss.

If these factors indicate employee status rather than independent contractor status, the law ensures proper classification and provides for damages equivalent to the benefits and compensation the worker would have received if not misclassified. Additionally, the law imposes a $10,000 penalty for each violation. Employers who misclassify a large number of workers may face class action lawsuits, exposing them to substantial liability including compensatory damages, back pay, benefits, penalties, and attorney fees and costs.


Commonly Misclassified Positions

The following types of positions are often misclassified:

    • Rideshare
    • Food delivery
    • Graphic design
    • Freelance writers
    • Delivery drivers
    • Social media management
    • Construction workers
    • Sales reps
    • Administrative support
    • Cleaning staff
    • Content creators
    • IT professionals
    • Healthcare workers

Advocacy and Expertise

Josh Newville, Head of Halunen Law’s Employment Law Litigation Group, expressed strong support for the new legislation, stating, “Employment misclassification hurts working men and women by denying them the basic benefits of employment they are entitled to, such as minimum wage, overtime pay, and benefits like health care, retirement, disability coverage, and sick time. This new law empowers misclassified employees to seek all the benefits they deserve and ensures employers bear the costs of such actions.”

Halunen Law is prepared to represent individuals and small groups of employees alleging claims under the amended law and is also well-equipped to handle employee misclassification cases on a class-wide basis. The firm played a pivotal role in the FedEx Driver Misclassification Litigation, the largest nationwide drivers’ misclassification class action ever filed in the United States. This case, which spanned over 32 states, settled after more than a decade of litigation for $466,000,000. Halunen Law is prepared to pursue these cases in Minnesota, which now boasts the strongest misclassification law in the country, offering the most significant remedies of any state.

Conclusion

The passage of this new law marks a significant victory for workers in Minnesota, providing them with robust legal tools to challenge misclassification and secure the benefits and protections they rightfully deserve. Employers must now carefully evaluate their classification practices to avoid substantial penalties and legal actions.

 

Josh Newville

Josh Newville is a tenacious litigator who has handled high-profile cases, secured millions of dollars for his clients, and won victories at the Minnesota Supreme Court and the U.S. Court of Appeals. As Halunen Law’s Employment Litigation Group Leader, Josh brings a commitment to excellence and more than a decade of experience to the firm’s Employment Law team.

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Across our nation, women employed at fast-food establishments are frequently experiencing the horrors of sexual harassment, abuse or assault in their workplace. A survey conducted by Hart Research Associates reports that 40% of female fast-food workers reported having been sexually harassed, abused, or assaulted on the job. The survey, which included polling 1,217 women aged 16 and older who work in fast food restaurants in non-managerial positions, found that two in five women had been subjected to some form of sexual harassment, including sexual assault and rape in their jobs. This pervasive reality in the fast-food industry suggests that operators of fast-food restaurants may be more concerned about profits than safe recruiting practices, hiring practices, training, and staff supervision.

Types of Harassment Experienced
The researchers asked workers whether they had experienced any of the 18 types of behaviors constituting sexual harassment while on the job, including behavior considered part of hostile work environments. The survey found that the most common types of harassment these workers faced included:

  • Unwanted sexual teasing, jokes, remarks, or questions (27%)
  • Unwanted hugging or touching (26%)
  • Unwanted questions about sexual interests (20%)
  • Sexually suggestive gestures (18%)
  • Kissing or groping (10%)

Further, 8% experienced requests for sex (including in exchange for work benefits), and 2% experienced sexual assault or rape on the job.

Physical and Mental Impacts Suffered
Nearly half of the female respondents who experienced sexual harassment, assault, or abuse reported health problems that resulted, with more than one-third saying they experienced a greater level of stress on the job and more than 20% saying they feared going into their workplaces. Female employees also reported feeling greater sadness and depression, becoming less productive, and having their sleep and appetite affected.

Although many fast-food chains have sexual harassment policies and procedures, female respondents found such policies and procedures ineffective. Most women who reported sexual harassment or assault to the employer were given only informal responses, including advice to simply avoid the offender.

Finally, one in five of those who reported the sexual harassment found that their employer engaged in various forms of retaliation, including cutting hours, scheduling less desirable shifts, assigning undesirable job duties, denying a raise or promotion, and terminating employment.

Additionally troubling, the survey found that 42% of women who experienced unwanted sexual harassment or assault felt they had no choice but to endure the harassment because they could not afford to lose their job.

Halunen Law attorneys are here to help
If you have experienced workplace sexual harassment, assault or abuse, or if your employer retaliated against you for reporting this conduct, the attorneys at Halunen Law can help.

The attorneys at Halunen Law can guide you through the process of reporting sexual harassment, assault, or abuse to company management or human resources—a process that can be an effective way to address the problem.

Halunen Law attorneys can also help you consider other options for addressing sexual harassment, assault or abuse in the workplace. These include filing a Charge of Discrimination with an appropriate state or federal civil rights office or filing a lawsuit against your employer for monetary damages.

You do not have to face sexual harassment, assault or abuse in the workplace alone. Halunen Law attorneys will stand with you to stop the conduct, protect your right to a workplace free of sexual harm, and fight to receive compensation for what you have experienced.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

whistleblower

Over the past century, securities fraud and other fraudulent activities involving publicly traded companies have cost investors – and often taxpayers – trillions of dollars. Such misconduct has also fueled major economic crises, including the 2008 financial crash. That catastrophe led to the passage of the Sarbanes-Oxley Act (“SOX”), a sweeping federal law that focused on preventing, uncovering, and punishing securities fraud and related illegal activities.

Like many other federal agencies, the SEC relies on courageous whistleblowers to report suspected illegal acts, so that it can investigate and pursue enforcement.    

More often than not, whistleblowers work for the companies that are violating securities laws. SOX contains robust anti-retaliation provisions that protect whistleblowers and provide compensation and other relief if their employers are found to have engaged in prohibited retaliation.

Those considering reporting their employers’ SOX violations should consult an experienced whistleblower attorney before doing so. Meanwhile, here are five key things to know about whistleblowing under the Sarbanes-Oxley Act.

One: Companies, Conduct and Whistleblowers Covered By SOX

The rules and requirements of Sarbanes-Oxley, including whistleblower protections, apply to all publicly traded domestic companies, subsidiaries of publicly traded companies and nationally recognized statistical ratings organizations (such as Moody’s Investors Service Inc. or Standard & Poor’s Global Ratings Service).

Section 806 of SOX prohibits retaliation against employees or contractors of Sox-covered companies who engage in protected conduct – that is, individuals who provide information to a supervisor, a federal agency, law enforcement, or Congress that they reasonably believe the employer is engaging in, has engaged in or is imminently about to engage in:

  • Securities fraud
  • Mail, bank or wire fraud
  • A violation of any federal law that relates to fraud against shareholders
  • Violations of any SEC rule or regulation

Two: Prohibited Retaliation Under SOX

SOX prohibits any adverse employment action against an employee or contractor who engages in protected conduct as outlined above. Adverse actions may include:

  • Discharge
  • Demotion
  • Suspension or other discipline
  • Threats
  • Harassment
  • Reassignment that affects prospects for promotion
  • Reduction in pay or hours
  • Any treatment that singles out a whistleblower in the terms and conditions of employment as compared to non-whistleblowing employees

Three: Proof of Retaliation Required for a Successful SOX Retaliation Claim

To prevail in SOX whistleblower retaliation cases, employees must prove:

  • They engaged in protected conduct;
  • Their employers knew they had engaged in such activity;
  • Their employers took adverse employment action against them; and
  • The protected whistleblowing activity “was a contributing factor in the unfavorable personnel action.”   

Once an employee shows that their whistleblowing was  a “contributing factor” in the employer’s unfavorable employment action, the employer can defeat the claim only if it “demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”

Four: How and When to File a SOX Retaliation Claim

If you believe you’ve experienced unlawful retaliation under Sarbanes-Oxley, you can file a complaint with the federal Occupational Safety and Health Administration (OSHA). You must file the complaint within 180 days after you first experience or become aware of the prohibited retaliation. Note: this is a short time period, making it important to act quickly to maintain a claim under SOX, preferably with the assistance of an attorney.

Once OSHA receives a complaint, it will review its validity and investigate the alleged retaliation. If the evidence supports your claim of retaliation, and an employer settlement isn’t possible, OSHA will grant various forms of relief and damages. If OSHA doesn’t issue a final decision within 180 days after it receives your complaint, you can file a retaliation claim in federal court.

Five: Remedies and Damages Available for Unlawful SOX Retaliation

If you prevail in your SOX whistleblowing claim, the relief and remedies you may receive include:

  • Reinstatement
  • Back pay
  • Front pay
  • Payment for lost benefits
  • Special damages, including damages for emotional distress, mental anguish and impairment of reputation
  • Attorney fees, expert witness fees and costs

While Sarbanes-Oxley doesn’t provide rewards for reporting unlawful securities-related activities, such compensation may be available through the SEC Whistleblower Program that was established under the Dodd-Frank Act.

Halunen Law: SEC Whistleblower Attorneys

At Halunen Law, we have the utmost respect for whistleblowers who report unlawful activities that defraud shareholders, investors and the general public. Our SEC whistleblower attorneys fiercely protect the rights of those who report misconduct in the securities industry, defend them against prohibited retaliation and fight to get them the maximum amount of compensation available for their courageous efforts.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

Susan -headshot

A Partner at Halunen Law, Susan Coler is a member of the Halunen Law False Claims Act (FCA)/Whistleblower Practice dedicated to litigating False Claims Act and other whistleblower cases across the country. She represents whistleblowers who challenge illegal corporate conduct, particularly fraud against the government.

angry man arguing with his colleagues in the officeEmployees frequently call our office because they are being harassed or bullied by a boss or co-worker.  You might be surprised to learn that, generally, workplace bullying is not illegal.

We are often told that the employer has an Employee Handbook that includes some form of Respectful Workplace Policy that prohibits any type of offensive behavior, including bullying.  Many employees believe failing to enforce the policy is somehow illegal because the policy prohibits bullying.  This is not true.  Most Employee Handbooks indicate they are not contracts.  This generally means that the employer is not legally obligated to enforce the handbook unless an exception applies.

But here is the good news— there are exceptions to this rule.

The most common protection for bullied employees comes from state or federal non-discrimination laws.  To be protected, an employee must be able to connect their age, disability, race, religion, orientation, medical leave, gender, or other protected status to a hostile work environment.  So, the bullying must be motivated by the protected status.  For example, if a gay employee is taunted or subjected to bullying by co-workers because they are gay, and this negatively impacts the employee’s ability to perform their job, an employer’s failure to stop the conduct promptly once on notice could be actionable.  If a supervisor or manager is causing the bullying, the employer may be automatically liable if the conduct is sufficiently severe or pervasive.

Similarly, bullying may be illegal if an employee engages in what is called “protected conduct,” such as raising concerns over violations of law or taking time off for a serious medical condition, and the employer responds by creating a hostile work environment or taking other actions to force the employee to quit. This behavior may violate state or federal whistleblower or non-retaliation laws.

When the bullying is caused by either protected status or protected conduct, the remedies available to the employee are monetary damages to compensate for wage and benefit loss, emotional distress damage, and attorney fees and costs.

Some employees have pursued claims against employers for allowing bullying to create an unsafe workplace in violation of the OSHA General Duty Clause, Sec. 5(a)(1). That clause requires the employer to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…”  Cases have also been brought against employers who retaliate against employees who report feeling unsafe in the workplace because of bullying by a co-worker or supervisor.

Some states, like Minnesota, have Freedom From Violence statutes that require zero tolerance for violence.  In Absey v. Dish Network, 2013 WL 2460235 (Minn. App. June 10, 2013), an employee complained to their Human Resources Department about a boss who punched a hole in a door and threw a satellite dish and papers at the employee. The employee’s job was later eliminated, and his application for a new position was rejected. A jury found that the Freedom from Violence statute was violated because the employee’s whistleblowing on the violence issue was a motivating factor in the company’s decision not to offer the employee the new position.

Another protection used successfully has been pursuing claims under a state Disorderly Conduct statute.  These statutes typically make it unlawful for people to engage in brawling, fighting, disruptions to assembly or public meetings, or engaging in offensive, obscene, abusive, boisterous, or noisy conduct tending to arouse alarm, anger, or resentment towards others.  These types of cases have been few and far between, so the law in the area is not yet well settled.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

Susan -headshot

Attorney Susan Coler is driven to confront illegal corporate conduct and pursue justice on behalf of her courageous clients. She is a Minnesota State Bar Association Labor and Employment Law Specialist, is rated as AV®-Preeminent by the Martindale-Hubbell Peer Review, has consistently been named a “Super Lawyer” since 2008, and has been named several times on the Super Lawyer’s list of Top 50 Women Attorneys in Minnesota. 

Each of us is more than the sum of our parts. No single characteristic defines us; rather, we are an amalgamation of different traits, inclinations, experiences and perspectives.

Female doctor looks over medical record for upcoming appointment

For some people, their unique combination of biology and background means they’re members of more than one class that the law protects from workplace discrimination and harassment. A Black woman can experience prohibited discrimination premised on her race and her gender. A gay Jewish man may be the victim of harassment and abuse because of his religion and sexual orientation. 

Known as “intersectional discrimination,” this type of workplace conduct is widespread and increasingly recognized by courts as the basis for claims under Title VII of the Civil Rights Act of 1964 and other federal and state anti-discrimination laws. When the claim involves discrimination against a woman because of her gender and membership in another protected class, it’s sometimes called a “sex-plus” claim. And when age is the other asserted basis for an employer’s discriminatory actions (e.g., a woman in her 50s who’s terminated because of her sex plus her age), that’s ”gendered ageism.” It’s illegal, and can be the basis of a claim for compensation and other relief.

Intersectional Discrimination Defined and Recognized

The analytical framework for intersectional discrimination was popularized by Black legal scholar Kimberlé Crenshaw, who argued that “different forms of inequality […] operate together and exacerbate each other.” The Center for Intersectional Justice describes intersectionality as:

“The ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination “intersect” to create unique dynamics and effects. For example, when a Muslim woman wearing the Hijab is being discriminated, it would be impossible to dissociate her female from her Muslim identity and to isolate the dimension(s) causing her discrimination.”

Over the past two decades, many federal and state courts have repeatedly recognized and allowed intersectional discrimination and harassment claims to proceed as employment claims when employees experienced disparate treatment because of their membership in more than one protected class. As one federal court noted, “Some characteristics, such as race, color, and national origin, often fuse inextricably. Made flesh in a person, they indivisibly intermingle. Title VII prohibits employment discrimination based on any of the named characteristics, whether individually or in combination.”

Sex-Plus-Age Discrimination Claims

Many cases that recognize intersectional discrimination involve older female workers who claim they suffered adverse employment actions based on their gender and ages. Many state laws, including the Minnesota Human Rights Act, prohibit both age and gender discrimination. While “age” isn’t a protected class under Title VII, the federal Age Discrimination in Employment Act of 1967 (ADEA) prohibits age-based discrimination in the workplace, making a gendered ageism case viable under federal law as well. 

Despite its illegality, workplace age discrimination is rampant in a business, societal, and technological culture that often venerates youth over experience. Approximately 453,000 American workers filed age discrimination claims with the Equal Employment Opportunity Commission between 1997 and 2020, while about one in five workers over age 40 and one in four workers over age 60 believe they have experienced age discrimination in the workplace, according to a Senior Living survey. 

While men and women can experience age-based discrimination, studies have shown that it disproportionally affects female workers, especially women of color. A 2023 analysis of gendered ageism in the workplace noted that: 

“Age discrimination is not equal; ageism tends to be gendered. … Studies exploring the well-being of working women have indicated that women are more likely to be victimized by all forms of discrimination, including ageism. In one study of 6,642 women over 18, 63% of those over 50 stated that they were discriminated against. Women, particularly women of color, are further subjected to the intersecting prejudices of age, ethnicity, and gender bias.” (citations omitted)

A 2020 federal appellate decision illustrates how courts recognize and treat sex-plus-age discrimination claims. In Frappied v. Affinity Gaming Black Hawk, LLC, the plaintiffs brought claims under Title VII and the ADEA, alleging their employer terminated them based on their ages and gender. Reversing the trial court’s dismissal of their claims, the appellate court held that “sex-plus-age claims are cognizable under Title VII,” noting that “Ample precedent holds that Title VII forbids ‘sex-plus’ discrimination in cases in which the ‘plus-’  characteristic is not itself protected under the statute.” 

The court thus concluded that: 

“Intersectional discrimination against older women is a form of discrimination based on sex stereotypes that Title VII was intended to prohibit. And discrimination against older women that does not target older men is a form of sex discrimination.”

Whether based on one protected trait or a combination of characteristics, workplace discrimination is illegal. It unfairly deprives qualified individuals of opportunities or subjects them to hurtful and demeaning behavior or comments. No one should have to abide by or endure such treatment.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

Pamela headshot

As a member of Halunen Law’s Employment Practice Group, Pamela Johnson brings an impressive reputation for advocacy and achievement. Her clients benefit from her breadth of experience, stellar track record, and exceptional insight. 

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