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CAN I RECORD A CONVERSATION WITH MY EMPLOYER?

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As an employment law attorney representing employees, I am often asked, “Can I record a conversation with my employer without saying that I am recording it?” The answer depends on whether the state you are recording in requires a one-party or two-party consent and whether your employer has a company policy that prohibits employees from recording conversations.

One-Party Consent States

One-party consent, the more common standard, permits an individual to record a conversation they are a party to without notifying the other party. In other words, most states allow a person to record a conversation without telling the other parties to the conversation that you are indeed recording it.  However, the person recording the conversation MUST be a party to it.  Leaving a device recording in a room where others are talking without your input or presence is not permitted and could be regarded as illegal wiretapping. The one-party consent standard is also the federal standard.[1]

Two-Party Consent States

The two-party consent rule, better known as the “all-party” consent rule, requires the consent of all parties to a conversation. As a general matter, many lawyers and scholars suggest sticking to the strictest rules when and if a person has doubt regarding legality. This can happen for example if you are calling someone from a one-party state, but the person you are calling is in a two-party state.

Workplace Policies

Some companies have policies that prohibit employees from recording workplace conversations. Whether these policies are enforceable depends on the policies and the circumstances. This means that, even if you are working in a two-party consent state, you could be subject to discipline for violating company policy if you turn on your cell phone recorder when you meet with your boss. It is important to find out if your company has such a policy before deciding whether to record a conversation. Also relevant is whether the recording may include confidential or other types of protected information and what company policies exist about that.

So, Can I Record My Employer?

So what does this mean if, perhaps, you would like to record your boss harassing you?  The answer depends on where you are recording the conversation and your company’s policies. For example, if you recorded your boss in Minnesota without his or her consent that may be permitted, with certain exceptions.[2] Under the same circumstances in Illinois, you would need to notify your boss of the fact that you are recording.[3]

For more information about specific states, here is additional information from a 50-state survey: https://www.justia.com/50-state-surveys/recording-phone-calls-and-conversations/

If you have any questions regarding your ability to record a conversation in the workplace, you should make sure that you meeting the legal requirements for that state and obtain the advice of a skilled and knowledgeable attorney. At Halunen Law, our employment law attorneys are happy to help.

Halunen Law employment attorney Ross Stadheim has an excellent record of recovery for his clients. Out of the 119 cases he has had in his seven years with the firm, all but 4 have resulted in recovery—a 96% success rate. However, all cases are judged on the particulars of their individual facts and there is no guarantee of success. He is part of an elite group of 2.5% of Minnesota attorneys who are under the age of 40, or have practiced law less than 10 years, to be selected to the Super Lawyers list as a “Rising Star” for 2014 through 2018. Learn more about Ross Stadheim.

 

[1] 18 U.S.C. § 2511 (promulgating the federal standard for consent to recording conversations).

[2] Minn. Stat. § 626A.02

[3] 720 ILCS 5/14-1, et seq.

There Is No “Right” or “Wrong” Way to React to a Work-Related Sexual Assault

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During my career as an employment law attorney, I have had the unique privilege of representing many employees who have been sexually assaulted during the course of their employment by a co-worker or supervisor. It makes my heart heavy to know there are so many people out there who have gone through such an experience.

The #MeToo Movement

The last two years have brought a sea change in American culture in terms of how we as a society view the power dynamics and relative culpability between the perpetrators and victims of sexual assault. This change has been popularly referred to as the ‘#MeToo’ movement. I hoped that after #MeToo, I would start to see fewer victims of sexual assault in the workplace come through the doors of our law firm. Sadly, this has not been the case.

I also hoped, I now see naively, that the attitudes of the companies who employ the perpetrators of sexual assault in the workplace, and the attorneys who represent them, would change to reflect the times. Unfortunately, again and again, I hear the same thing from them: “your client didn’t react normally to the sexual assault, and therefore we don’t find her[1] to be credible.”

Your Employer May Claim Your Response to Sexual Assault is “Wrong”

Every client I’ve represented has had a different emotional reaction to her sexual assault. Yet I’ve heard from almost every employer and defense attorney that each and every one of my clients’ reactions to a sexual assault was not “typical,” and was, therefore “wrong.”

  • If my client reacts angrily, then that is wrong.
  • Conversely, if she doesn’t have a strong and immediate visible emotional reaction, her response is also wrong.
  • If she doesn’t report the assault immediately – wrong.
  • If she interacts again with the perpetrator of her assault in the workplace (even though she may have to because her job depends on it) – also wrong.
  • But, if she quits because she feels she can no longer go to work and face her attacker – also wrong.

These types of comments make my blood boil. By suggesting that my client is not credible based on how she experienced (or didn’t experience) a certain type of emotional reaction to a sexual assault often re-traumatizes her. It makes her feel as though she’s the one who has done something wrong. It also places her in a double-bind, because there is no ‘right’ way for her to react in their eyes. This is classic victim-blaming by the employer.

Victim-blaming is the only wrong response in these situations.

Common Emotional Responses to Work-Related Sexual Assault 

While there are many emotional responses that are commonly experienced by Work-Related Sexual Assault victims, each person reacts in her own unique way.Common emotional responses include, but are not limited to:

  • Shock and numbness
  • Denial
  • Feelings of going crazy
  • Disruption of daily life
  • Feelings of loss of control
  • Fear
  • Guilt, shame, and self-blame
  • Anger
  • Isolating from friends and loved ones
  • Anxiety
  • Nightmares
  • Concern about what will happen to the assailant should you report them
  • Difficulty with sexual intimacy
  • Post-traumatic Stress Disorder (PTSD)

There is No “Right” or “Wrong” Reaction.

The truth is – there is no “right” or “wrong” reaction to a sexual assault. If you experience some, but not all, of these reactions, that is not wrong either. If you experience totally different reactions than the ones listed above, that’s also not wrong! Everyone experiences trauma differently.

Moreover, the vast majority (74%) of victims of sexual assault don’t report their assaults to law enforcement.  Individuals make their own decision about whether and when to report an assault (or not report it) based on different factors and variables in their lives. There is no one “right” way or time to report sexual assault. If you have been sexually assaulted, but have not reported it to authorities, that does not mean you have done anything wrong, or that you cannot now pursue legal action.

Almost two years after the #MeToo movement reached the public consciousness, employers and attorneys continue to hold these misconceptions of victims. Sadly, the fight to correct these false assumptions, and achieve justice for victims of sexual assault, is not over.

Let’s Fight to End Work-Related Sexual Assault & Sexual Violence in the Workplace

Please contact Halunen Law if you have experienced a sexual assault by a co-worker or supervisor either in the workplace or at a work-related event. Our experienced team will listen non-judgmentally to your story, no matter what kind of reaction you had to the assault, or whether or not you have reported it to the authorities.

Together, let’s fight to end sexual violence in the workplace.

Emma R. DennyHalunen Law employment attorney Emma Denny is experienced, tough and relentless in her pursuit of justice for clients who have been wronged by their employer. She has successfully litigated cases in state and federal court and negotiated favorable resolutions for clients facing discrimination, whistleblower, harassment, FMLA, ERISA, disability and religious accommodation, wage, retaliation, contract agreements and a host of other disputes. Learn more about Emma Denny.

Throughout this article, I will use female pronouns, as women make up the majority of sexual assault victims. However, men and gender non-binary people can also be victims of sexual assault.

Disgruntled Employees? You Bet. Whistleblowers in the United States

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A few years back, a news article reported that a meeting of corporate defense attorneys had called out whistleblowers as primarily “disgruntled employees.” This remark reflects a too-common perspective that whistleblowers are a nuisance rather than a contributor to the well-being of our businesses and our government.

Far from being a nuisance, whistleblowers are champions of ethical conduct and play a powerful role in prodding businesses to do what is right. Are whistleblowers often disgruntled employees?  Of course.

Employees See What Others Can’t

Employees are often in the best position to identify corporate fraud and fraud against the government—the typical targets of whistleblowers. A 2016 report by the Association of Certified Fraud Examiners[1] on global fraud found that employees were the largest source of tips about corporate fraud. This is not surprising. Employees have unique “insider” knowledge of the inner workings of their employer. Fortunately, fraudulent conduct in the workplace causes at least some employees to “blow the whistle.” They push back and do something to change the behaviors. This kind of effort sometimes meets success—but sometimes raises the ire of the employer, hence the discounting of whistleblowers by calling them “disgruntled” (which is defined by Merriam-Webster as “unhappy and annoyed”).

The Law Protects Whistleblowers

Blowing the whistle may feel like a risky proposition. And it may be, but an experienced whistleblower attorney can guide whistleblowers in understanding their options and how to protect themselves. A multitude of federal and state laws protect whistleblowers by allowing employees to sue their employer if their whistleblowing leads to retaliation. For example, the False Claims Act has an anti-retaliation provision that can award double back pay and lost front pay to whistleblowers who have been terminated because they fought against fraud against the Government.[2]  Similarly, employees who are treated badly when they blow the whistle on fraud in publicly traded corporations have recourse in the Sarbanes-Oxley Act (SOX).[3] Many states also protect whistleblowers. The Minnesota Whistleblower Act,[4] for example, prohibits retaliation against employees who report actual or planned violations of the law by their employer.

The Law Rewards Whistleblowers   

To encourage employees to come forward, regardless of the risk, many federal and state laws provide rewards for reports of corporate fraud. Under the False Claims Act, for example, a whistleblower stands to receive 15-30% of any money collected by the Government.[5] Many states have similar statutes.[6] Those who report violations of federal securities laws where the Government collects more than $1 million, also stand to receive a 10-30% portion of what is collected.[7] One group that supports and informs whistleblowers about their rights calls this process “incentivizing integrity.”[8] And that’s what whistleblower reward laws do: they provide a means by which employees whose integrity demands action can look forward to some potential benefit for the risks they are taking.

Whistleblowers/Disgruntled Employees Are Critical to the Rule of Law

It is impossible for federal and state governments to police all of their transactions for fraud. It is difficult for large corporations to ferret out rogue managers or executives. Small businesses can often engage in illegal conduct “under the radar.” This is why employee/ whistleblowers are so important. Their unique perspective gives them the ability to see illegal conduct where others cannot. Whistleblowers are often the first line of defense to corporate fraud and other wrongdoing.

Senator Chuck Grassley has long been a champion of whistleblowers and the laws protecting and rewarding them. He remarked in a speech: “Whistleblowers are patriots and heroes . . . We owe a great debt to you—the whistleblowers. We have a responsibility to follow your example and keep fighting for responsible business and accountable government.”[9]

Let’s applaud those “disgruntled employees” who have the courage to stand up and blow the whistle on corporate fraud.

A Partner at Halunen Law, Susan Coler represents whistleblowers across the United States in many different industries who challenge illegal corporate conduct, including fraud against the government. Susan is rated as AV®-Preeminent by the Martindale-Hubbell Peer Review and has consistently been named a “Super Lawyer” since 2008. Learn more about Susan and her work at Halunen Law.

 

[1]Report to the Nations on Occupational Fraud and Abuse,  https://s3-us-west-2.amazonaws.com/acfepublic/2016-report-to-the-nations.pdf

[2] 31 U.S.C. § 3730(h).

[3]18 U.S.C. § 1514A.

[4] Minn. Stat. § 181.932

[5] 31 U.S.C. § 3730(d).

[6] https://www.halunenlaw.com/practice-areas/qui-tam/state-statutes/

[7] https://www.sec.gov/whistleblowera

[8] Taf.org

[9] https://www.grassley.senate.gov/news/news-releases/grassley-whistleblowers-are-patriots-and-heroes

Good News for Minnesota Employees with Disabilities: Recent Minnesota Supreme Court Decision Requires “Thorough Communication” about Accommodations

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A new case decided by the Minnesota Supreme Court provides additional support to employees with disabilities—it clarifies that employers cannot terminate disabled employees who request an accommodation without a “thorough communication” and “documented good faith efforts” to see if the accommodation would actually pose an undue hardship.

Under the Minnesota Human Rights Act, employers are required to provide reasonable accommodations to qualified workers with disabilities to allow them to perform the essential functions of their jobs. But what do these terms mean?

McBee v. Team Industries, Inc.

The Minnesota Supreme Court recently clarified these terms in the case McBee v. Team Industries, Inc. In McBee, the plaintiff had disabling back injuries as the result of an on-the-job injury. When the employer was told by her physician that she could not lift over ten pounds, her employer terminated her employment. The employer claimed she could not perform the essential functions of her job because of her physical limitations,

The district court granted summary judgment for the employer, finding that the employee was not qualified to perform the essential functions of her job, and that there was no reasonable accommodation available that could allow her to perform the essential functions of her job. The Minnesota Supreme Court reversed the decision, holding that there was a question of fact as to whether being able to lift ten pounds was an essential job function, and whether there were accommodations that could have been provided to allow McBee to perform those functions.

What is an Essential Function of a Job?

The Court defined an essential function as “the fundamental job duties of the employment position,” those duties which are “required of all applicants for the job in question.” Essential functions do “not include marginal functions of the position.” In determining whether a function is “essential,” courts must consider:

  • The employer’s judgment as to which job functions are essential;
  • Written job descriptions prepared before advertising or interviewing applicants for the job;
  • The amount of time spent on the job performing the function;
  • The consequences of not requiring the employee to perform the function; and
  • The current work experience of employees in similar jobs.

What is a Reasonable Accommodation?

A “reasonable accommodation” means “steps which must be taken to accommodate the known physical or mental limitations of a qualified disabled person.” There are many different kinds of reasonable accommodations, which differ based on the nature of the disability and the type of work performed by the employee. Some examples might include providing an ergonomic chair for an employee with a back impairment, or allowing an employee time off of work to undergo necessary surgery to treat a disability.

Employers are required to provide reasonable accommodation to qualified employees with disabilities. The only exception is if providing an accommodation would pose an “undue hardship” on their business.

In the McBee case, the Minnesota Supreme Court stated that employers cannot just claim “undue hardship.” They must engage in “thorough communication” with the employee to see if the accommodation would pose an undue hardship. This decision provides employees who need accommodations with leverage to insist on a thorough evaluation of their needs and whether a reasonable accommodation is available.

What does this mean for disabled employees in Minnesota?

In short, if you have a disability and need assistance from your employer in order to help you do your job, your employer is required to help you identify and provide accommodations. Here are some steps you may take:

  1. Let your employer know, preferably in writing, what kind of help you need for your disability.
  2. Engage in communication with them to identify accommodations that may help you do your job.
  3. Identify potential accommodations by reviewing the Job Accommodation Network website, run by the US Department of Labor: https://askjan.org/.
  4. Consult with your medical provider about appropriate accommodations for your disability in your workplace, and then let your employer know what your medical provider has recommended.

Halunen Law employment attorney Emma Denny has successfully litigated cases in state and federal court and negotiated favorable resolutions for clients facing discrimination, whistleblower, harassment, FMLA, ERISA, disability and religious accommodation, wage, retaliation, contract agreements and a host of other disputes. She is recognized by Super Lawyers as a Rising Star and as one of the Top Women Attorneys in Minnesota. Learn more about attorney Emma Denny.

Employee’s Rights When Summoned For Jury Duty

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What rights does an employee have when jury duty calls?

This is a common question many Minnesotan employees have as they followed the media’s coverage of the high-profile case of Mohamed Noor, a police officer on trial for shooting Justine Ruszczyk (Damond) after she reported a crime being committed near her home.  The trial started with jury selection on April 1, 2019 and lasted nearly a month. On April 30, 2019, the jury returned after 11 hours of deliberation and convicted Mohamed Noor of third-degree murder and second-degree manslaughter.

During the initial jury selection phase of the trial, many media outlets reported the court dismissing numerous jurors for various reasons, such as bias, but also because of financial hardship. For example, the court excused several potential jurors because they could not find/afford childcare or could not afford to miss a paycheck (let alone a month of work).[1]

This trial made obvious the challenges and implications of being summoned for jury duty, especially if it is a month-long trial. Employees may worry about taking extended absences from work, whether their employer can terminate them, and whether they will be able to pay bills while serving on the jury. So, what rights – if any – does an employee have with respect to jury duty.

The Dos and Don’ts of Jury Duty

  1. DO Abide By The Summons Packet. When the court initially summons you for jury duty, you will receive an official “summons” packet. This packet includes juror information and a block of time (typically a month) when you are “on call” for potential trials. If a trial date is finalized within your block, then you must report to the courthouse to begin your jury service. It is important to report unless you are excused for “good cause,” since it is a misdemeanor if you fail to appear. If, for any reason, you are unable to make it that day or on time, call the jury office right away. For jury office telephone numbers by county, please visit: http://www.mncourts.gov/Jurors.aspx.
  2. DO Notify Your Employer Immediately. An employer is required to provide unpaid time off for any employee reporting for jury duty. An employer may request your summons or other supporting documentation for verification, so you may want to have that information handy. However, the law unfortunately does not require an employer to pay an employee while they are out of work. This is a big consideration for some people since the court only offers a limited stipend to compensate a juror’s time (usually $40 per day plus $.565 per mile).
  3. DO Contact Us, If Your Employer Retaliates Against You. The law prohibits an employer from discharging, harassing, or otherwise penalizing employees who take time off to serve as jurors. If your employer retaliates against you because you reported to jury duty, call the attorneys at Halunen Law right away.
  4. DON’T Lie During Jury Selection. If there is a trial, you will next proceed through voir dire, or jury selection. During this time, the attorneys from both sides question the pool of jurors about bias and other things that may prevent them from being an impartial juror. If you are unable to be a juror for any reason (including family, financial, or personal reasons), it is wise to be honest with the attorneys. However, that does not mean the court will automatically dismiss you. The court may still select you to serve as a juror or an alternate. However, lying to a court during the process can result in a charge of [2]
  5. DON’T Despise Jury Duty, DO Embrace the Opportunity! While many people become beleaguered upon seeing a jury summons, you should enjoy this opportunity! The ability to serve on a jury is a foundational principle of our democracy and many people around the world do not get to experience this privilege. In addition, many jurors reflect fondly on their experience since they saw our justice system first hand, while hearing about many interesting fact patterns and issues.

If you are a juror and feel that you have been treated unlawfully by your employer, contact Halunen Law’s employment today for a free consultation at (612) 605-4098. Our employment law attorneys are happy to help.

As an employment attorney at Halunen Law, Colin is passionate about his work, the opportunity to share his client’s story, and to right a wrong. He is proud to be part of Halunen Law’s tenacious group of attorneys who continually work to bring meaningful change to their clients’ lives and the law.

[1] https://www.twincities.com/2011/12/21/potential-juror-charged-with-perjury/.

[2] https://www.mprnews.org/story/2019/04/08/day-6-jury-could-be-seated-monday-in-noor-trial.

Supreme Court Further Denies Basic Rights to Workers & Consumers

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Recently the U.S. Supreme Court struck another blow against consumers and employees in the case of Lamps Plus, Inc.  v. Varela. Yet again the Court reasoned backward from the result it wanted to reach and went out of its way to find in favor of a corporate defendant – at the expense of individual citizens – by reading into a contract language that did not exist.

Varela Class Action Against Lamps Plus 

In Varela, a hacker invaded Lamp Plus’s computer system and obtained personal information its Lamp Plus employees, which was then used to file fraudulent federal income tax returns.  The employees, including Varela, had signed an agreement at the inception of their employment to arbitrate any disputes relating thereto.  Thus, when Varela filed a class action against Lamps Plus, it responded by filing a motion to compel arbitration.

The District Court ordered the matter to arbitration as a class. The Ninth Circuit affirmed, holding that when analyzing a provision in an adhesion contract (as here), the ambiguity must be interpreted against the drafter – in this case, Lamps Plus.  The Supreme Court disagreed.  It concluded that because the arbitration agreement didn’t specifically state “class” before “arbitration”, it could not have been contemplated that arbitration would be anything other than on an individual basis.  The Court reiterated that under the Federal Arbitration Act, arbitration is favored and every effort should be used to enforce arbitration agreements as written. To further rationalize its convenient interpretation of the arb clause, the Court stated:

In individual arbitration, “parties” forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.

Worker & Consumer Rights

This rationale is, unfortunately, intellectually dishonest.  Forced arbitration is nothing more than a “get out of jail free” card for corporations. It was created by corporate interests to protect corporate interests.  It’s a major fraud upon the American public- a fraud that most people aren’t even aware of is imposed on them when they purchase a good or service or obtain a new job.  Corporations attach arbitration clauses and class action waivers to any good or service they possibly can for several reasons:

1. Absent forced arbitration, employees, and consumers are entitled to the “rigorous” procedural mechanism provided by civil courts. Court proceedings are governed by rules that must be followed to assure a proceeding is fair and transparent.  A judge or an appellate court may intervene if the rules are not followed.  Rules relating to arbitration exist to some extent, but are more aspirational than mandatory.  Arbitrators are given free rein to interpret and apply the rules.  There is no ability for an employee or consumer to challenge an arbitrator’s application of those rules, so they may be applied in a discriminatory manner.

2. Appellate review is also a crucial procedural safeguard afforded to litigants in court, as it allows errors of law or fact to be corrected. An arbitration decision is binding, even if an error is made.

3. Arbitrators are typically not experts in a particular area of the law and more often than not come from the ranks of lawyers that represented or have represented corporations in their law practice. In contrast, in a court proceeding employees and consumers are entitled to an impartial jury of their peers.  This is a crucial difference between arbitration and trial.  On its face, arbitration is unfair just given the fact that the decision maker is more likely than not going to have a predisposition to identify with a corporate litigant over an employee or consumer.

4. Arbitration decisions are secret and cannot be used as a precedent to further a party’s legal arguments or factual conclusions. As an example, if ABC Corp. had been sued ten times for sexual harassment and found to have violated the law in each case, these very important findings could not be used to help prove other cases where similar conduct by the same employer is alleged.  This denies employees the basic right to corroborative evidence thus adversely impacting their ability to prove their case.

5. Arbitration does not have a lower cost, if not faster, and is not more efficient than cases heard by a court. Although the Supreme Court relied on these attributes to support the proposition that arbitration is fair, it is simply not true.  All the costs associated with the arbitration (except the arbitrator’s fee but judges have no fees except upon filing) are the same as litigation.

Depositions, experts, travel, and discovery are needed whether the case is arbitrated or litigated.  There is nothing more efficient or faster about arbitration compared to a court proceeding.  It generally takes the same amount of time to litigate a case in either forum.  Litigation is litigation- there are no shortcuts.  Any competent lawyer will spend exactly the same amount of time developing and litigating a case as is necessary for a successful outcome.

6. Individual arbitrations of any complex case- such as a product defect action- are not economically feasible and the Supreme Court and corporations know this. People cannot afford to arbitrate complex cases individually because the costs are often so great. This makes it impossible for an average person to challenge corporate misconduct so their injuries go uncompensated – the ultimate “get out of jail free” card that keeps on giving.

In the final analysis, arbitration clauses and class action waivers are bad for employees and consumers but a boon for corporations.  The process cheats consumers and employees of their ability to obtain justice.  The Legislature needs to change the law. It’s a stacked deck and it’s time for the deck to be reshuffled.

Read a recent article in the New York Times about this ruling.

Clayton Halunen is the founder of Halunen Law, representing employees, consumers, and whistleblowers in individual, and qui tam, and class actions. Halunen has gained national recognition for his class action work, including leadership positions in a number of prominent nationwide cases. He has litigated class actions in such areas as employee misclassification, defective products, product mislabeling, and consumer fraud. Learn more about Clayton Halunen.

Truck Drivers, Couriers, and Delivery Service Workers Beware! You May Be Misclassified.

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Employee misclassification has become a huge problem in the United States. Employers who want to increase profits by not paying withholding and other taxes and escaping liability for workers’ compensation and unemployment claims will often claim that their workers are ‘independent contractors’ or ‘consultants’ (ICs), even though these people perform jobs that go to the heart of the employer’s business. As an example, it has become almost automatic for operators of trucking, courier, and delivery services to use only independent contractor drivers. Why? The answer is simple- they save hundreds, maybe millions, of dollars each year by stiffing workers of benefits like 401(k) matches, insurance coverage, overtime, etc. For many years now companies have largely gotten away with this intentional misclassification by requiring workers to sign agreements with arbitration clauses and class action waivers. When workers challenged misclassification they were required to do it individually, rather than as part of a larger group of workers, and had to submit their claim to an arbitrator rather than a judge (arbitrators often coming from the ranks of lawyers that defend corporations). As a result, it became almost impossible to succeed in these types of cases. However, the tide has finally turned.

One of the first class actions to challenge misclassification of employees was brought by Halunen Law, along with a group of other employment lawyers. In the FedEx Litigation,[1] corporate courier drivers were employees of the company while drivers doing exactly the same job working for FedEx Ground and FedEx Home were deemed independent contractors. Both Ground and Home drivers had to pay all their own expenses including purchasing or leasing their delivery vehicles. They also did not receive any of the benefits the corporate drivers did. The case, which actually involved multiple cases, was litigated for over 10 years before it was settled for a total of almost $500 million. The case was brought before arbitration clauses and class action waivers were made routine in driver agreements.

Just recently, however, Swift Transportation settled a case for $100 million with approximately 20,000 owner-operator drivers who entered into independent contractor agreements with Swift. Van Dusen v. Swift Transportation Co., Inc., No. CV 10-899 (D. Ariz. Mar. 11, 2019). Swift drivers had an agreement that provided for arbitration as well as a class action waiver.

The Swift lawsuit was commenced in the federal district court in Arizona over nine years ago. The class action complaint claimed that the drivers were employees of Swift who had been misclassified as ICs and were paid below the federal minimum wage level when taking into account their lease payments, costs of maintaining their trucks, and paying for fuel, tolls, and insurance. The lawsuit against Swift was brought under the Fair Labor Standards Act as well as state wage and contract laws.

Like most defendants in these cases, Swift sought to compel arbitration on an individualized basis under the arbitration provisions in the drivers’ IC agreements. Swift’s arbitration clause was found unenforceable when it was held by a district court judge to be part of a “contract of employment” that is exempt from arbitration under the Federal Arbitration Act (FAA). The court ruling eventually led Swift to agree to the proposed settlement, even though it vigorously denied misclassifying any owner-operators.

Analysis and Takeaways: Misclassification Cases Are Winnable

Given the development of misclassification law over the past several years, we are at a juncture where cases that once would be almost impossible to win are, in fact, winnable. The wins for employees could be substantial. With statutes of limitations in some states as long as six years, successful employee drivers may be entitled not only to payment of minimum wage and overtime, but reimbursement for all out of pocket expenses including the cost of their delivery vehicles. The magnitude of these damages could be staggering to large corporations who continue to intentionally violate the law and wager that paying a fine if caught would be substantially less than paying employees what they are actually owed. This is a wager I, for one, look forward to taking on.

Clayton Halunen is the founder of Halunen Law. After more than 20 years of practice, Halunen has successfully tried to verdict employee discrimination, harassment and whistleblower cases. He has litigated and won countless high-profile cases that have significantly altered corporate practices and garnered millions of dollars in awards and settlements for his clients. Learn more about Clayton Halunen.

 

[1] http://www.talentwave.com/fedex-worker-misclassification-case-settled-for-227-million/

Minnesota Legislature Considers Competing Bills on Workplace Sexual Harassment Standards: One Protects Workers; the Other Hurts Them

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In 1986 the United States Supreme Court issued its decision in Meritor Savings Bank, FSB v. Vinson – its first significant venture into the world of workplace sexual harassment claims. While the decision was critically important in confirming that hostile workplace sexual harassment is unlawful,[1] it also unfortunately made it extremely difficult for workers to hold their harassers accountable for such conduct by imposing upon them a difficult (and often insurmountable) evidentiary burden. Specifically, the Court held that in order for sexual harassment to be actionable, “it must be sufficiently severe or pervasive ‘to alter the conditions of the [victim’s] employment and create an abusive working environment.’”[2]

In the 30-plus years that have passed since Vinson was decided, application of the “severe or pervasive” standard has generated criticism from lower courts, employment lawyers, and legal commentators because its application has resulted in many cases being dismissed for failure to clear the unreasonably high bar it has set. Some particularly egregious examples of this include:

  • A 2002 case involving a male supervisor in the auto industry who sexually propositioned a female worker within days of her hiring. He touched her inappropriately, called her a “man-hater,” required her to draw a vulgar image to be considered for promotion, and required her to type up the minutes of a “He-Man Women Hater’s Club.”
  • A 2010 case in which a male repeatedly made unwanted advances toward a female employee, lied to a business associate about having sex with her — in front of her, compared women’s breasts and told her hers were “so-so,” often rested his hand on her leg, and at one point grabbed and kissed her.
  • A 2017 case brought by a female employee involving a string of actions by a male maintenance worker, who told her to remain seated in her desk while he repaired it, because he liked “beautiful women and beautiful legs,” and later implied performing oral sex.[3]

Recently, the Minnesota legislature began taking steps to eliminate the “severe or pervasive” standard, and to protect employees in their places of work. In February 2019 a Minnesota House of Representatives committee approved a bill (H.F. 10),[4] which would change the definition of sexual harassment under the law by including statutory language specifically stating that “an intimidating, hostile, or offensive environment . . . does not require the harassing conduct or communication to be severe or pervasive” in order to constitute sexual harassment. The Senate’s companion bill (S.F. 1307)[5] includes identical language and has been submitted to the Judiciary and Public Safety Finance and Policy Committee for consideration.

Despite bi-partisan support for this legislation, a competing bill (S.F. 2295)[6] was introduced on March 11, 2019 by a small group of state senators led by Karin Housley (R). Unlike H.F. 10 and S.F. 1307, this bill would hurt Minnesota workers by retaining the “severe or pervasive” standard and writing it into Minnesota’s statutory code.[7] This bill goes further by proposing to limit the circumstances under which employers can be held liable for sexual harassment committed by their employees, making it even more difficult for those who have been subjected to unwanted workplace sexual harassment to hold their harassers accountable.

Halunen Law is committed to defending workers’ rights and fighting illegal workplace activity. We are disappointed to see proposed legislation that fails to protect workers who have experienced sexual harassment, and that potentially makes it easier for their harassers to avoid accountability. We encourage you to contact your representatives to vocalize your support for H.F. 10 / S.F. 1307, and its elimination of the anachronistic and inequitable “severe or pervasive” standard.

Read a recent Minnesota House of Representatives update on this legislation

As an employment attorney at Halunen Law, Ross Stadheim has garnered more than $26 million in settlements and verdicts for his clients during his time at Halunen Law, representing employees who have experienced discrimination, retaliation or wrongful termination, or other illegal activities in the workplace. He is part of an elite group of just 2.5% of Minnesota attorneys who are under the age of 40, or have practiced law less than ten years, to be selected to the Super Lawyers list as a “Rising Star” for 2014 through 2018. Learn more about Ross Stadheim.

 

 

 

 

 

 

 

[1] In Vinson, the Supreme Court held that in addition to explicitly (or implicitly) conditioning employment benefits on sexual favors (sometimes referred to as “quid pro quo” sexual harassment), an employee may establish a violation of the law “by proving that discrimination based on sex has created a hostile or abusive work environment.” Vinson, 477 U.S. 57, 66 (1986)

[2] Vinson, 477 U.S. at 68 (emphasis added) (citation omitted).

[3] https://www.twincities.com/2018/04/23/sexual-harassment-bill-would-remove-severe-pervasive-bar-in-mn/

[4] https://www.revisor.mn.gov/bills/bill.php?b=house&f=HF0010&ssn=0&y=2019

[5] https://www.revisor.mn.gov/bills/bill.php?f=SF1307&y=2019&ssn=0&b=senate

[6] https://www.revisor.mn.gov/bills/bill.php?b=senate&f=SF2295&ssn=0&y=2019

[7] Under the proposed bill, the statute would state that in order to be actionable sexual harassment must be “sufficiently severe or pervasive to alter the terms or conditions of an individual’s employment . . . and create an abusive environment.”

Minnesota’s Connect 700 Program: Aiming to Increase Representation of Workers With Disabilities, But More Progress Is Needed

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In 2014, a Minnesota demographic survey conducted on State employees showed that less than 4% self-identified as having a disability. When compared to the presence of employees with a disability statewide and nationwide, 7.9% and 10.5% respectively, it was evident that the State’s workforce did not reflect the diversity of Minnesota’s population of individuals with a disability.

As a result, former Governor Dayton’s office issued Executive Order 14-14, which issued a goal for State agencies to increase employment for people with disabilities to at least 7% by August 2018. Fast forward four years, on August 29, 2018, former Governor Mark Dayton’s office announced that Minnesota met its goal to have 7% of its workforce identified as having a disability. This modest increase of individuals with a disability in the State’s workforce can be attributed in no small part to the implementation of a trial work program, Connect 700.

What is the Connect 700 Program?

The Connect 700 Program (also referred to as “C700”) is a voluntary, non-competitive hiring and retention process, which requires all State agencies to first verify that there are no C700 participants qualified to perform the job before they consider any candidates in the standard applicant pool. If the hiring manager determines that a C700 participant meets the minimum qualifications of the job, then the C700 candidate will receive a non-competitive interview before other applicants without a disability.

C700 applicants who are chosen for a position are provided up to 700 hours of work in order to demonstrate they can satisfactorily perform the job with or without accommodation. The work performed during the 700 hours is also referred to as the “pre-probationary period.”

Helps Disabled Individuals Keep Jobs

Importantly, the C700 Program not only assists people with a disability get a job but is also designed to help them keep their jobs with the following:

  1. ADA Coordinator. The C700 Program assigns each participant at the point of the interview process with an ADA Coordinator, whose job is to determine whether there are any reasonable accommodations that would allow the participant to perform his or her job. The ADA coordinator remains a valuable resource for participants throughout the pre-probationary period.
  2. Weekly Check-in Meetings. In addition, the C700 Program also requires supervisors to schedule and complete weekly check-in meetings to discuss the participant’s current performance, successes, and areas for improvement by using a specified C700 review form.
  3. Verbal and Written Feedback. On top of the weekly check-in meetings, supervisors are encouraged to give verbal and written feedback allowing participants to build on areas of strength and improve on areas of weakness.
  4. Certify for Probationary Employment. If the participant successfully completes the pre-probationary period and meets the minimum qualifications for the job, the participant will be certified for probationary employment. If the supervisor is satisfied with the participant’s performance prior to the close of the 700 hours, the supervisor may certify the participant for probationary employment. On the other hand, the supervisor or the agency may decide to not certify the participant for probationary employment if the participant exhibited an inability to satisfactorily perform or failed to meet the minimum qualifications of the job.

Areas for Improvement

As of March 19, 2018, Minnesota certified approximately 800 individuals to participate in the program and at least 80 participants have transitioned to regular employment. Even so, there remains much room for improvement to ensure Minnesotans with a disability have their fair chance to participate in the workforce. For example, a study recently released by the University of St. Thomas reveals the challenging reality that Minnesotans with a disability face — implicit bias continues to exist in the hiring process. This conclusion is also supported by a 2017 report released by the Minnesota State Demographic Center with data showing that Minnesotans with a disability are 2.6 times more likely to be unemployed than the general population.

To this day, the C700 Program operates as a viable alternative for Minnesotans with a disability who have difficulty securing employment. That being said, Minnesotans with a disability have raised issues about supervisors or human resources personnel failing to abide by the requirements of the C700 Program. While not yet before the courts, the State’s failure to follow through on the requirements of the C700 Program may violate state and federal laws requiring reasonable accommodations to qualified individuals with a disability.

If you are a current or former C700 Program participant and feel that you have been treated unlawfully, contact Halunen Law’s employment team today for a free consultation.

 

Resources:

Learn more about the Connect C700 Program

Read MinnPost article: New study identifies hiring bias against individuals with disabilities

Read the Minnesota Employment and Economic Development Study: The Disability Employment Gap, by Type of Disability

Download the State of Minnesota Governor’s Workforce Development Board Report

As an attorney working in both the employment and consumer class action practice groups, Colin Pasterski revels in the investigation phase, the pursuit of facts, and digging deep into complicated legal issues to develop clear and persuasive cases. An integral part of Halunen Law’s legal team, Colin’s focus on fighting injustice and providing the highest level of legal service guide his work every day. Learn more about