Phone: 612-605-4098  |  

Archive for category: BLOG

Employee’s Rights When Summoned For Jury Duty

/in , /by

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

/in , /by

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.

/in , /by

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

/in , /by

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

/in , /by

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 

Understanding DATWA: Minnesota’s Drug and Alcohol Testing in the Workplace Act

/in , /by

 

PART ONE 

Ten Things Minnesota Job Applicants Need To Know About Drug & Alcohol Testing Laws

You received a telephone call from a prospective employer, and they want to hire you! You are ecstatic – this is the dream job you’ve always wanted! The employer goes on to tell you that that the “offer of employment is contingent upon you passing a drug and alcohol test.”
You stop dead in your tracks…

…Am I required to submit to the test?
…What if my current medications impact my test results?
…What happens if I do not pass?
…What should I do?

Minnesota’s Drug and Alcohol Testing in the Workplace Act (also known as “DATWA”)

Minnesota’s Drug and Alcohol Testing in the Workplace Act regulates drug and alcohol testing for job applicants and employees. Minnesota employees should be familiar with their rights as a job applicant in pre-employment drug and alcohol testing under DATWA, as well as their rights as an employee after commencing employment.
As a job applicant, here are ten things you need to know about pre-employment drug and alcohol testing:

1. There must be a conditional offer of employment. An employer may require a job applicant to undergo a drug and alcohol test, but only after a conditional offer of employment has been made to the applicant. In other words, an employer cannot ask you to submit to a test, unless you have been also offered the position.

2. The same test is required for all applicants offered the position. If the employer requires that a job applicant undergo a drug test as a conditional offer of employment, the same test is required of all applicants conditionally offered the same position.

3. The employer must have a written drug and alcohol testing policy. An employer cannot request that a job applicant undergo testing unless the employer has a written drug and alcohol testing policy that contains the required information under Minnesota law. Each applicant must be given a copy of the policy before being tested, and the employer must provide the job applicant with an acknowledgment form to sign confirming that he or she has seen the testing policy. The employer must also post the testing policy in an appropriate and conspicuous workplace location.

4. You can disclose prescription medications. A job applicant has the opportunity, before and after the testing, to list over-the-counter or prescription medications or other explanations for a positive drug test.

5. Testing can only be done by a qualified facility. The testing must be done at a qualified laboratory as defined by law to conduct the testing. The employer must comply with regulations from the Minnesota Department of Health regarding the chain of custody and laboratory procedures. An employer cannot own or operate the testing facility.

6. You are entitled to a second test. If the applicant’s initial test result is positive, the applicant must be allowed to take a second test (i.e. confirmatory test), before an employment offer may be withdrawn. The applicant must also be given written notice of the right to explain the positive test, and the employer may request that the job applicant indicate any over-the-counter or prescription medication that the applicant has recently taken or other relevant information to explain the positive test.

7. A third test may also be conducted. If the initial test and confirmatory test are both positive, the applicant may, within 5 days of receiving the confirmatory test, request that a third test is conducted on the same testing sample at the applicant’s own expense. Within 3 days of receiving notice of the confirmatory test, the job applicant may again submit information to the employer to explain a positive confirmatory test, such as medication information.

8. The employer must pay for the test. An employer cannot require, or even request, that a job applicant pays for the cost of the initial or confirmatory tests. However, if the applicant tests positive for both the initial and confirmatory test, and requests that a third test is completed on the same sample, the employee is responsible for the cost of the third test.

9. You have a right to know the test results. Within 3 days of the employer receiving the test results, the employer must inform the job applicant in writing of the test results, as well as the employee’s rights under DATWA. A job applicant also has the right to request and receive a copy of the drug or alcohol test from the employer.

10. There are rules governing a withdrawn employment offer. If the job applicant fails both the initial test and the confirmatory test, the employer must inform the applicant of the reason for the withdrawn job offer within 10 days of the final decision not to hire. The employer cannot withdraw an offer based on an initial positive test alone that has not been verified by a confirmatory test.

What can I do if my rights are violated?

Many Minnesota employers implement a drug and alcohol testing policy, yet they oftentimes fail to comply with DATWA (or even know of its existence). While you may feel embarrassed for a positive test result, you should know your rights and your options for action.

If a Minnesota employer does not follow DATWA and violates your rights, you can bring an action against them for damages that you suffer. If you are successful in bringing an action and are awarded damages, the court may also award you reasonable attorney fees for your action, if the court finds that the employer knowingly or recklessly violated DATWA.
If you feel your drug and alcohol testing rights may have been violated, contact our employment law team today for a free consultation.

PART TWO 

Know your rights: Eight reasons your employer could conduct drug and alcohol testing in your workplace

Minnesota’s Drug and Alcohol Testing in the Workplace Act (also known as “DATWA”) regulates drug and alcohol testing for job applicants and employees. Minnesota employees should be familiar with their rights as a job applicant in pre-employment drug and alcohol testing under DATWA, as well as their rights as an employee after commencing employment.

What employees should know about drug and alcohol testing:

DATWA protects current employees from arbitrary drug and alcohol testing during the course of their employment. Like job applicants, an employee has the right to both a first initial test and a confirmatory test, has the right to explain a positive test, has a right to receive the test results, and has the right to a third test (after a positive initial and confirmatory test) at the employee’s own expense.

As an employee, drug and alcohol testing may not be conducted unless the employee meets certain circumstances. For example, the employer has one of the following reasonable suspicions:

1. Under Influence. An employee is under the influence of drugs or alcohol.

2. Violated the Employer’s Policy. The employee has violated an employer’s policy prohibiting use, possession, sale, or transfer of drugs or alcohol at work or while operating a work vehicle, machinery, or equipment.

3. Personal Injury. The employee has sustained a personal injury or caused another employee to sustain a personal injury.

4. Work-Related Accident. Employee caused a work-related accident or was operating vehicles or machinery involved in a work-related accident.
An employer may also require drug and alcohol testing under the following circumstances:

5. After Treatment Program. If an employee is referred to a drug or alcohol treatment program by an employer, the employee may be tested for up to two years after completing the program.

6. Routine Physical Exam. An employer may require an employee to submit to a drug and alcohol test as part of a routine physical exam once per year. However, the employee must receive at least two weeks’ notice prior to the test.

7. Random Testing in Safety-Sensitive Position or Professional Athlete. An employer may
require an employee to test if the employee is in a safety-sensitive position. Professional athletes subject to a collective bargaining agreement may also be subject to random testing.

8. Federal Law or Contracts. In certain situations, if the employer is engaged in contracts with the federal government or if certain federal laws or regulations apply to the business, an employee may be subject to alcohol and drug testing under federal law.

As an employee, when can I be terminated under DATWA?

A first positive drug test is not necessarily the end of your employment. An employer may not discharge or discipline an employee after a positive initial and confirmatory test, unless the employer first offers the employee the opportunity to go into a treatment or rehabilitation program. If the employee fails or refuses to complete the treatment program, then the employee may be disciplined or terminated. If, after treatment or rehab, the employee fails a second drug test, the employee is then subject to discipline or termination. If an employer decides to terminate, demote, or impose another adverse employment action on an employee, the employer must notify the employee of the decision with ten days.

What can I do if my rights are violated?

Many Minnesota employers implement a drug and alcohol testing policy, yet they oftentimes fail to comply with DATWA (or even know of its existence). While you may feel embarrassed for a positive test result, you should know your rights and your options for action.

If a Minnesota employer does not follow DATWA and violates your rights, you can bring an action against them for damages that you suffer. If you are successful in bringing an action and are awarded damages, the court may also award you reasonable attorney fees for your action, if the court finds that the employer knowingly or recklessly violated DATWA.
If you feel your drug and alcohol testing rights may have been violated, contact our employment law team today for a free consultation.

 

 

Attorney Amanda Crain has been selected into Minnesota Super Lawyers Rising Stars, an elite group of only 2.5% of Minnesota attorneys under the age of 40, consistently since 2014. After several years of practicing family law, Amanda came to Halunen Law with an astute understanding of client emotional trauma, conflict, and complex legal matters. Her perceptive approach, proven record, and steadfast dedication serve her clients well. Learn more about Amanda Crain.
(https://www.halunenlaw.com/our-team/amanda-r-crain/)

From Cashiers To CEOS, Women In The Workplace Deserve To Be Heard

/in /by

As an immigrant from Bangladesh, Eva Biswas was granted asylum in the United States to escape the persecution, terrorism, and sexual violence she experienced in her home country. But she found life in her new country brought unexpected challenges in the form of the alleged sexual harassment from her workplace supervisor at a national chain store. In her lawsuit, Ms. Biswas alleges her store manager propositioned her for sexual favors in exchange for a promotion. She claims that she told the other managers at her store what happened, but was told to keep it to herself and that she had “misunderstood” what her manager did because she didn’t understand American culture.

Minimum wage employees, immigrants, and women of color – too often have their voices ignored when they report sexual harassment or other workplace misconduct to their employers. Although the #MeToo movement has shed much light on sexual harassment in the workplace and has made great strides towards ensuring that those committing sexual harassment in the workplace are held accountable, the experiences of women who belong to marginalized groups have too often been overlooked. There are many reasons why this happens, but it is likely that some employees do not understand their rights, do not feel they can afford a lawyer, or do not think lawyers will not be interested in what happened to them. However, all employees are entitled to equal protection of the law – from cashiers to CEOs; and attorneys who represent individuals like Ms. Biswas do want to hear their stories, and often work on a contingency basis, meaning that they do not get paid unless the case resolves successfully.

If you believe you have been sexually harassed at your workplace, contact Halunen Law to learn more about your rights in the workplace and how you can protect yourself.

 

 

 

Read a recent article in City Pages about Ms. Biswas’ lawsuit: (http://www.citypages.com/news/target-employee-claims-sexual-harassment-and-that-management-didnt-stop-it/494286651)

Halunen Law employment attorney Emma Denny is representing Ms. Biswas. Ms. 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.

Learn more about attorney Emma Denny.
(https://www.halunenlaw.com/our-team/emma-r-denny/)

Whistleblower Might Get Second Chance as Advocate

Whistleblower Might Get Second Chance as Advocate

/in , /by

Whistleblower Might Get Second Chance as Advocate A former college dean who says she was blackballed after suing the now-scuttled Globe University may have a second career as a whistleblower advocate. Heidi Weber, who moved to the Twin Cities from South Dakota to become a Globe University dean only to be fired in 2011, was featured on the Aug. 31 episode of CBS-TV’s new series “Whistleblower.”

Read the full story