Close Election Silver Lining? Higher Employment Rate For Lawyers!

Many people cringe at the thought of a close election.  The uncertainty.  The recounts.  The leadership vacuum.  The hanging chads.  I mean, who can forget this guy, right?

So what could be the benefit to a close election and a recount?  A dramatic increase in the number of lawyers who have a job!  The recession has been particularly hard on new and younger lawyers, so what could be better than a slew of litigation through a number of battleground states to help boost employment in a segment of the working population close to my heart!  Maybe this is all part of the candidates' clandestine lawyer stimulus bill?  We'll see...

The Minnesota Marriage Amendment And The Workplace

Minnesotans will be asked to decide at the polls whether we should amend our State Constitution to include a definition of marriage as between one man and one woman.  I appreciate that for some of us this vote raises a number of personal, political, cultural and religious issues we need to grapple with in making our decision.  And as a disclaimer, I personally plan to vote "No" on this Amendment for a number of reasons.  However, I want to expound on one of those reasons because it directly relates to the subject matter I like to blog about: Minnesota employment law.

"What does this issue have to do with employment law?" you may ask.  The answer is plenty.  At the crux of the legal analysis regarding the constitutionality of gay marriage is the fact that government - federal, state and local - provides special benefits and rights to married couples.  And many of these marriage-based government benefits relate to employment.  For example, the Family Medical Leave Act allows many employees the right to take time off of work to care for a spouse or child with a serious medical condition.  There are many employee benefits programs governed by state and federal law such as health insurance, 401(k) retirement accounts, and the right to receive workers' compensation benefits for a incapacitated or deceased spouse that relate to marriage and the ability to marry. 

The employment laws I have outlined above provide a number of benefits not just to the employees but to society in general. That is why they were passed in the first place. They allow for a smoother (and less expensive for taxpayers) transfer of wealth upon death or incapacity. They provide job security and financial stability in the event of serious illness or injury to family members. They allow for insurance coverage for medical and other costs that may otherwise not be provided to a non-family member.

Whether this Marriage Amendment passes or not, same-sex couples are going to continue to live together in committed long-term relationships.  They are going to have and raise children. They are going to be responsible for financially supporting each other and their kids.  The personal and societal benefits conferred by these laws would be equally as relevant to same-sex couples, and the benefits to society would presumably be the same as well.  Thus, from an employment law perspective, these are a few reasons why you may want to consider voting "No" to Minnesota's Marriage Amendment.

Get Out Of Work And Get Out To Vote!

November 6 is election day and everyone should exercise their right and get out to vote.  But better yet, those of us in Minnesota can get out of work to get out and vote!

Minnesota Statute 204C.04 states as follows:

Every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work on the day of that election, without penalty or deduction from salary or wages because of the absence. An employer or other person may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee....

 

A person who violates this section is guilty of a misdemeanor, and the county attorney shall prosecute the violation.

So that jerk boss can't threaten, intimidate or coerce you into working late, taking a pay cut, using personal or vacation time or interfering in any other way with your right to vote.  If he or she has questions, have them give me a call. 

Who's Entitled to the Prevailing Wage? Not the People Doing the Work...

The Minnesota Supreme Court recently engaged in some mental gymnastics to deprive some employees doing work for the City of Minneapolis the right to have a jury decide whether they were paid the prevailing wage for their work.  The opinion in the case of Caldas v. Affordable Granite & Stone, Inc. (AGS) can be found here.

The City had hired the plaintiffs' employer, AGS, to repair some flooring in the Minneapolis Convention Center.  Per the City's requirements, the contract between AGS and the City expressly stated that AGS's employees would be paid the "prevailing wage" for the work they were doing on behalf of the city.  The 13 plaintiffs in this case argued that they were engaged in putting in the new floor, which entitled them to approximately $44 per hour which was the prevailing wage for the work.  AGS argued that the plaintiffs were engaged in janitorial work.  Two audits by the City into complaints by the plaintiffs found that they had been properly characterized as performing janitorial work.

The plaintiffs sued claiming breach of contract, among other things.  Because the plaintiffs were not parties to the contract between the City and AGS that contained the prevailing wage requirement, they had to argue that they were intended third party beneficiaries to that contract.  AGS, naturally, argued the plaintiffs were not intended beneficiaries so it could avoid paying these folks the prevailing wage.  The court's decision turned on whether these plaintiffs were intended third party beneficiaries or not. 

The test that is commonly used in Minnesota to determine if someone is a third party beneficiary states:
 
Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and ... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

So what does that legalese mean?  Essentially, when a beneficiary of a contract is not expressly named in the contract, the court can look at the circumstances surrounding the contractual provision at issue to determine who, if anyone, may have been an intended beneficiary of the contract.  If you are not an intended beneficiary, you cannot sue to enforce the contract.

So at this point you have to be asking yourself this question:  If a prevailing wage provision was not meant to benefit the employees of AGS who were going to do the work , who the heck was it intended to benefit? 

And that would be a great question.  And logic would dictate that your instincts were correct.  And you would be in good company in reaching that conclusion because the City of Minneapolis itself argued to the court that the plaintiffs were intended third party beneficiaries of the prevailing wage agreement. 

But if you were a member of the Minnesota Supreme Court, you would have ended up on the losing end of this argument.  The court held that AGS's promise to pay the prevailing wage was a "general promise to comply with the law, which does not confer upon AGS employees the right to enforce the law."  The court went on to state that the City, not the employees, had a right to enforce that provision by conducting audits or investigations into whether AGS was complying with the prevailing wage provision of the contract.  The City conducted those audits, concluded the plaintiffs were paid properly, and that was the end of it.

My feeling is that it was easy for the court to dismiss this case because the City itself had already concluded that these plaintiffs were properly classified and properly paid.  As such, they did not present a compelling case that they had suffered some type of horrendous injustice.  When the facts of a particular case do not engender some level of sympathy, it is often difficult to persuade the court that your side should win.  But the problem here was that the only issue before the court was whether these folks were intended beneficiaries.  It was a jury's job to first determine whether the provision had been breached. 

Two of the six justices who decided the case dissented.  In addressing the question of whether these plaintiffs were intended beneficiaries of the contract, they asked this question: “If Affordable Granite & Stone’s promise to pay its employees the prevailing wage for their work on the Convention Center was not meant to benefit these appellants, for whose benefit was it intended?” 

For those of us who do this for a living, we think that is a really good question.

What Constitutes A "Hostile Work Environment?"

When people call and ask for me to take their case, they often claim they have been subjected to a "hostile work environment."  We often hear the term used to describe situations where someone is being subjected to sexual harassment.  Others believe that any time a boss or coworker have it in for us and take actions we think are meant to harm us at work that we are being subjected to a hostile work environment.  However, a claim for a "hostile work environment" is not limited to situations involving sex harassment, but it does not include every negative or hurtful action taken against us in the workplace.

Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others.  Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.

The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728.  Carol LaMont was a custodian at the Elk River, MN high school.  She reported to supervisor Doug Miner.  According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace.  These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place."  Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place."  Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.

The court in this case had to grapple with two issues.  First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment.  Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?

The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons.  Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.

But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment.  Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action.  The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.

The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment.  The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances."  In sum, the court found the conduct non-actionable because it was infrequent and not severe.

Notably, two of the seven justices dissented from the opinion.  They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.

In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex.  At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment.  But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.

Social Media In The Workplace

I have previously posted about the intersection of social media and the workplace.  Prior posts are here and here.  Recently, however, there has been a lot of buzz around how employers are attempting to obtain from employees or prospective employees the username and password ("login") information relating to their social media accounts so they can snoop around and see what they are doing in their spare time.  Employers are then purportedly using this information when making hiring and other employment decisions.  Here is a good interview of a law professor that discusses many of these issues.

Whether employers can request this information and access your private accounts is unclear.  The determination of where an employer's right to gain knowledge about its employees invades an employee's right to privacy in the world of social media requires the application of existing law in a manner that was never contemplated when the law was originally passed.  This often proves very challenging for courts and lawyers. 

I have a visceral reaction to the idea of providing login information to an employer.  But why is that?  And if asked, are you required to provide your employer access to your social medial profiles?  What are the consequences if you refuse the request?

The reason providing access to your private social media is so personally offensive to us is because we come to this issue with real-life experience that informs our understanding of the employment relationship.  While it is rarely discussed or defined, there is clearly a line between the information we typically are required to disclose to our employers and the information we choose to keep private.  We generally understand that we need to provide some personal information such as our address, social security number, work history, educational background and the like in order to apply for and be considered for employment.  Past that point (let's refer to it as the "disclosure line"), the employee has generally controlled the amount and nature of personal information that is provides to the employer and coworkers. 

When posting to Facebook, we often don't think about that disclosure line.  We may post unflattering pictures or information about ourselves that we intend to only be shared with our "friends," not our employer.  So those unflattering pictures, personal posts and rants about a jerk supervisor are clearly things we would typically choose to keep private from our employer.  The thought of sharing this information with our employer feels like a massive breach of the disclosure line and explains why requests from employers for our account information seems so offensive.

Do you have to provide the information requested?  There are arguments that existing law may prohibit an employer from accessing your private social media accounts.  The stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA) both arguably prohibit "unauthorized" access to electronic data.  The question then becomes, if your employer asks for your username and password and you give it to them, is their access unauthorized?  One court has held that where the employee provided the information because they feared they would suffer some type of adverse job consequence if they refused, the employer's access was unauthorized and violated the SCA.  Interestingly, the jury in that same case held that the employer DID NOT violate the employee's common law right to privacy by accessing the social media site.

Adding to the confusion, however, is the question of whose authorization is needed to "authorize" access?  Facebook has a policy prohibiting anyone other than the account owner from logging on to any particular account.  So if you authorize your employer to access your account but Facebook has not, is the access authorized or not?  This issue is unresolved.

And if you refuse your employer's request for login information because you have a good faith belief that your employer's accessing your Facebook page is illegal (say, for example, a violation of the SCA), and the employer takes some adverse employment action because of your refusal, you may have a claim under Minnesota's whistleblower statute.  The whistleblower statute prohibits an employer from retaliating against an employee who refuses to follow an order that the employee believes (in good faith) violates any law, rule or regulation.

And what if you are an applicant for employment who is asked to provide your login information?  We oftentimes put information on our social media pages that may disclose our birthdays, ethnicity, national origin, disabilities, sexual orientation, marital status, veteran status, etc.  Typically, employers are prohibited by the Minnesota Human Rights Act and other federal anti-discrimination laws from inquiring into these areas during the hiring process because employers may not consider these factors in making the hiring decision.  But by asking for your login information, are they in essence asking for this information and violating the law?  This is unresolved as well.  Some in congress are taking action to investigate this practice and put a stop to it.

There are also situations where coworkers may use social media to harass another coworker based on their sex, race or other prohibited reason.  If the employer has a credible report that social media accounts have been used to discriminate or harass in the workplace, should the employer be allowed to request access to social media sites in those situations?  Again, this issue is unresolved.
Then, of course, the employer needs to ask itself whether it is really worth all the hassle to ask for social media access in the first place? One law firm that represents employers believes the possible legal complications in requesting social media login information far outweighs any benefit the employer may receive from obtaining access to this information.  I tend to agree.

But what should you do today if your employer asks for this information?  First, ask your employer why it needs the information.  There may be a less intrusive way to get the employer what they want.

Second, ask what will happen if you choose not to provide the login information.  Will you be fired?  Is there some other negative consequence that will occur? 
Third, ask if you can consult with an attorney before making a decision.  If your employer won't let you talk to a lawyer and want an answer immediately, you need to exercise your best judgment in determining how to proceed.  If you decide to provide the information to the employer, I would be sure to communicate to them (in writing where possible) that you feel compelled to provide the information for fear of losing your job or suffering some other negative consequence.  You may also want to consider telling them that you believe what they are doing may violate the law. 
All of these decisions have consequences that cannot be predicted.  The best course of action is to try talk to a lawyer and evaluate the situation against what is in your personal best interest.

Is Wisconsin's War Just On Women?

Wisconsin's Democrats have been claiming that Governor Scott Walker recently signed a law repealing Wisconsin's Equal Pay Enforcement Act as part of Republican's "war on women."  I covered this issue in some prior posts (here and here) as the law was passed out of Wisconsin's Assembly.  In my first post, I erroneously argued that the Assembly's bill would repeal Wisconsin's law providing for equal pay to women for the same work as men.  My post was based on an erroneous statement made by a Wisconsin's Democratic Assemblywomen's facebook post.  My friend Bart Torvik set me straight on that point, pointing out that the bill did not, in fact, repeal Wisconsin's law requiring equal pay for equal work.  Instead, it repealed people's right to seek certain damages for any type of discrimination in state court.
Nonetheless, Wisconsin Democrats have been trying to gain political traction by claiming that the repeal of this law will have a disproportionally negative effect on women.  Given that the law afforded all employees, regardless of gender, an avenue for redress in state courts, I do not think it is fair to claim that its repeal will have a disproportionate affect on women or that it constitutes a repeal of Wisconsin's law ensuring equal pay for equal work.

Those pushing for the repeal, however, have arguably provided a basis for some to claim that the repeal was motivated in part by gender. Wisconsin State Senator Glenn Grothman, who championed the repeal, argues that any gap in pay between men and women stems from women's decision to focus on child rearing instead of their career.  When shown statistics that even when taking life choices such as child rearing into account women still earn less than men, Grothman cited unsubstantiated "liberal" bias in the study and stated that he believed men cared more about money than women: "You could argue that money is more important for men. I think a guy in their first job, maybe because they expect to be a breadwinner someday, may be a little more money-conscious."

Obamacare At The Supreme Court: Get A Life

In a recent post, Adam Gillette at the Gillette-Torvik blog provides a fantastic reason we should ignore the theatrics and spin arising from the Supreme Court oral arguments on Obamacare and get out and enjoy our unseasonably warm spring. 

Brodkorb Case, Ctd.

I was recently interviewed by Minnesota Lawyer, a weekly newspaper for Minnesota's legal community, on the Brodkorb case which I have posted on in the past here, here and here.  The article in which I was quoted is here.  The take away from the article is that most legal observers believe Brodkorb has a very difficult case for the reasons I have previously stated.  The paper also ran an article on Brodkorb's decision to go so public with his allegations and threats of exposing other affairs in which I was also quoted.  It is an interesting analysis of the pros and cons of trying your case in the press.

Minnesota's Proposed Right To Work Law: What The Heck Is This Thing?

You may have heard that the Minnesota legislature is considering passing a law or having us vote on a constitutional amendment making Minnesota a Right To Work (RTW) state. RTW laws essentially allow people to opt out of joining a union at their workplace and paying dues. Currently, workers in Minnesota can opt out of being a union member if their workplace is unionized. However, they are typically required to pay the union a "fair share" of the dues, i.e. a percentage of the dues they would pay if they were full union members. The thought is that because these non-union members get some of the benefits the union provides (such as the pay and benefits negotiated by the union) they should have to provide some compensation to the union for obtaining those benefits for the employee. RTW would allow employees to opt out of the union and not pay the union anything, including a fair share.

Like many other issues, this one is highly political. On one hand, you have Republicans and the Chamber of Commerce arguing RTW will decrease unemployment and increase wages. On the other, you have Democrats and labor unions arguing the law will not decrease unemployment and will lower wages.

I found a couple of articles that I think lay out the positions and facts on RTW. You can read them here and here. But do your own research so if you are asked to vote on this measure, you are making an informed decision.

Senate Scandal Post Script

I have one more thought about Former Minnesota Senate Communications Director Michael Brodkorb's potential legal claims against the Senate. Specifically related to the potential damages he may recover. At the end of this recent article, Brodkorb's attorney justifies the half million dollar settlement demand by stating: "His career has been irreparably damaged. He’s having a very difficult time finding new employment.”

Ask yourself this question. Has his career been damaged and is he having difficulty finding a job because he was discriminated against? Or is he experiencing these problems because he held a very public job and his voluntarily affair with the married Senate majority leader became public knowledge? Is it the alleged discrimination or the very public display of his poor decision making skills that has stunted his career?

Update: Senate Sex Scandal

I had previously posted about the circumstances surrounding the resignation of former Senate Minority Leader Amy Koch and the termination of her staffer Michael Brodkorb.  Brodkorb had previously threatened possible litigation, but it was unclear at the time what the facts were underlying his potential claim(s).

Today, Brodkorb confirmed what had long been believed - that he and Koch had an affair.  The Star Tribune has a copy of a letter sent to the Minnesota Senate by Brodkorb's attorney confirming the affair and alleging that terminating Brodkorb for the affair amounted to sex discrimination in violation the Minnesota Human Rights Act.  Brodkorb claims he was discriminated against because when female staffers had affairs with male legislators, they were not fired.  In essence, he is claiming that he was treated differently than women who had engaged in the same behavior (affairs with legislators) and therefore was a victim of discrimination. 

In what appears to be a transparent attempt to force the Senate into settling the matter, Brodkorb's attorney held a press conference in which he threatened to depose numerous legislators and their staffers about their alleged affairs to help prove Brodkorb's case.  Indeed, Cal Ludeman, the Secretary of the Senate, has labeled the threat of digging up other affairs as "blackmail." 

I think Brodkorb has at least three serious obstacles to succeeding on his potential claim.  First, he needs to prove that the females who allegedly not fired for having affairs were "similarly situated" to Brodkorb in all material respects.  That means that they had similar responsibilities, reported to the same people, etc.  Brodkorb was the communications director of the Senate.  I would argue that other staffers are not similarly situated to him as their duties, responsibilites and reporting responsibilities likely varied significantly from Brodkorb's.  If they were not similarly situated, Brodkorb cannot prove he was treated differently and his claims fail.

Second, in one opinion, the Eighth Circuit Court of Appeals held that terminating an employee because they had a consensual sexual affair with a supervisor did not amount to sex discrimination.  While the facts in the case are somewhat different than those presented here, the holding could make it difficult for Brodkorb to prevail.

Finally, Brodkorb's claims are based on the premise that when asked, the other staffers and legislators are going to admit that they had sex with one another.  If there is one thing I have found that people lie about under oath, it is sex.  Unless Brodkorb can testify that he witnessed these other people in the act, he has to rely on them testifying that these affairs occurred.  I wish him luck with that. 

In sum, I don't think Brodkorb's alleged claims have much merit.  But what really bothers me is the behavior of his attorney.  That is the type of thing that gives all lawyers a bad name.

What Do A YouTube Video, Kickboxing, The Burnsville School District And A $255,000 Settlement Have In Common?

The folks in the Burnsville-Eagan-Savage School District are up in arms over a settlement payment made to the District's departing human resources director Tania Z. Chance.  As first reported, Chance was paid approximately $254,000 to leave her job, which is supposedly the balance on her two-year employment contract that the school board just approved in July 2011.  Dozens of angry parents, teachers and community members confronted the school board on Thursday about such a large payout and wanted details of why such a payment was made.  Many opined that because the District is looking at significant budget cuts it should have put that money into the classrooms instead.  One speaker compared the affair to Watergate and urged the school board to not "cover up" what actually happened.

Ironically, the buyout of Chance's contract comes despite the fact she purportedly had some performance issues prior to the contract being offered and a number of school board members questioned the wisdom of providing her a two-year contract when they had no obligation to do so.  Moreover, Chance has a colorful background.  She is a self-published author and Ph.D. in philosophy.  She also stars in a YouTube video where she engages in a kick-boxing exercise routine, drives her car, walks through the woods, lip-syncs to the background tract and pours herself a half-dozen shots of alcohol and then slams one of them on camera.  (Shot pouring and drinking at 2:07) She has her own website if you are inclined to investigate further.  Despite knowing of these issues (and the YouTube video), the board eventually voted in favor of offering Chance the employment agreement.  (My views on social media and the workplace found here and here.)

(Tania Z. Chance)

The copy of the Settlement Agreement between the District and Chance provided to the media didn't offer many more details of the reasons for her departure.  It had nine lines blacked out.

On Friday, however, new details came to light about some of the circumstances surrounding Chance's departure.  Specifically, a copy of the full Agreement without the redactions was leaked to the press.  It seems Chance had filed a Charge of Discrimination against the District and its Superintendent Randy Clegg with the Minnesota Department of Human Rights as well as with the Minnesota Board of School Administrators.  As part of the Settlement Agreement Chance agreed to withdraw those complaints.

The rest of us, of course, want to know what gave rise to the District making such a substantial payout when it was under such financial stress due to cutbacks.  The District and Chance have remained tight lipped about the circumstances that resulted in the buyout.  I suspect part of her agreement included a confidentiality clause or non-disparagement provision preventing her from dumping on the District while they pay her a quarter million dollars (which seems understandable).  Chance has, however, encouraged people to file public data requests on the individuals involved (presumably Clegg) to get to the bottom of the story.  The District's attorney has simply stated the payment was made because the parties "wished to terminate their employment relationship."  Really?  Thanks for clarifying that for the rest of us.  You've gotta love the lawyers.

The controversy doesn't end there.  The Star Tribune and Pioneer Press argue a state statute requires a governmental agency (such as a school district) to disclose the "specific reasons for the agreement if it involves the payment of more than $10,000 of public money" when it settles an employment dispute or engages in a buyout.  Indeed, the Minnesota Government Data Practices Act (MGDPA) includes a provision requiring just that.  The District argues its "they wished to terminate their employment relationship" explanation satisfies this standard.  (I don't.)


So should the District have paid the big bucks?  Are we entitled to know what happened?  Has Chance booked a taxpayer financed vacation to Hawaii?  I can't answer all of these questions, but let's shed as much light as we can.


The fact that Chance filed a Charge of Discrimination with the Minnesota Department of Human Rights indicates to us that she likely had a complaint of discrimination, harassment or retaliation against Clegg and/or the District.  Other details aren't available.  We can't assess the merits of her alleged claims and we don't know what the District's response may have been.  


What I can tell you is that working closely with someone who has accused you of discrimination, harassment or retaliation can be tricky.  We all have a natural inclination to be angry with people who accuse us of something we don't believe we did.  And if you are the one who believes you were the victim of discrimination, you may see everything your boss does after you reported the alleged discrimination as retaliation for your complaint.  I assume that Chance and Clegg were required to work closely together at the District.  My wife is a teacher and is a representative on her union's negotiation team.  She informs me that the human resources director and superintendent of her district work closely together during these negotiations and in other instances.  These allegations could have created significant issues for Clegg and Chance's working relationship.  But more importantly, their issues likely interfered with the smooth operation of the District.


Moreover, if Chance had just recently filed a Charge of Discrimination that had any merit, she and the District were looking at probably 12-24 months of additional administrative / judicial proceedings.  Regardless of the merits of the case, the District was going to have to pay Chance while she continued to work at the District or place her or Clegg on some sort of paid administrative leave.  To place her on unpaid leave because she filed a Charge would constitute illegal retaliation.  So the District was likely looking at paying Chance for the duration of her contract one way or the other regardless of the way things eventually went down.  By settling the matter by paying her the balance of what she was owed under the employment contract while removing her from the District offices and obtaining a release of claims, the District may have chosen the least expensive deal it could while avoiding any decline in District efficiency due to the dispute between Clegg and Chance.  On the other hand, if Chance's allegations are without merit, I think most people would have preferred that money be used to fight her claims in court.


The bigger question in my mind is what the District is doing to conduct an independent investigation of Chance's allegations.  If Clegg did in fact engage in some type of discrimination, the citizens, students and parents in the district deserve to know and the school board should terminate him immediately.  The real tragedy would be if Clegg engaged in discrimination and it was brushed under the rug with this settlement.  That would truly be a "cover up" entitling this drama to a "-gate" type moniker.  I hope that in addition to raising legitimate questions about the size of the payout to Chance, that these folks keep pressure on the school board to disclose the details of Chance's complaints.  


So what about the District's refusal to provide additional details?  Here I have some sympathy for the District.  Both Clegg and Chance were public employees.  There were clearly allegations against Clegg of wrongdoing.  He may be subject to an investigation and potential discipline.  


The MGDPA provides conflicting requirements on the District in this situation.  On one hand, the District has an obligation to provide the details of why there was a payout to Chance as explained above.  On the other, however, is a requirement to keep private the details of any pending complaint or investigation into a public employee (Clegg).  While the existence of a complaint is public information during an investigation, the underlying data and information upon which the complaint is based is private.  Once the employee is disciplined, the details of the complaint and data supporting the disciplinary action become public.  


If the District is investigating Clegg, the MGDPA prevents it from disclosing the underlying facts until Clegg has been disciplined and exhausted whatever grievance rights he may have. From a legal perspective, I think the District was wise to choose to limit the details of the alleged complaint if it is in fact investigating Chance's allegations rather than to acquiesce to the Star Tribune's request for additional details related to Chance's departure.  Whether that was the best decision from a political or public relations standpoint is different question.  


I think this story is far from over.  The details of Chance's allegations will come out sooner or later and there will likely be additional fallout for the District.  If Chance's allegations are substantiated, the school board will face criticism for not taking faster action against Clegg.  If Chance's allegations are shown to be meritless, they will face an outcry for paying her a quarter of a million dollars.  There is no happy ending for the District here.  

The Twin Cities Employment Market Is On The Rise

While not directly related to Minnesota Employment Law, a recent article on MinnPost.com discusses a recent study by the Met Council looking at the last 12 years of employment data for the 7 county twin cities area.  The study showed some positive signs of recovery.  Specifically, since the recession, the job supply in the twin cities is rising and the unemployment rate is falling.  While employment levels have not returned to their peak in 2007, things appear to be trending in the right direction.  Currently, the unemployment rate in the twin cities area is 5.3 %, which is well below the national average of 8.3%.

However, job growth in the twin cities has not compared well with other top 25 metropolitan markets over the last 12 years.  While we have seen growth in education, health care, leisure, hospitality and finance jobs, many traditional blue collar jobs have been lost in the manufacturing, trade, utilities and construction fields.  This is interesting given our relatively high rates of educational attainment, labor force participation and home ownership.

Also of note, the greatest growth in employment has been in the outer ring suburbs.  During the last 12 years, the cities with the biggest gains in number of jobs include Maple Grove, 13,000 jobs; Eagan, 6,300; Richfield, 5,800; Shakopee, 5,200; Woodbury, 4,400; Golden Valley, 3,600; Lakeville, 3,500; and Blaine, 3,000.  The biggest losers have been Minneapolis, 21,000 jobs lost; Bloomington, 17,000 jobs lost, and St. Paul, 13,000 jobs lost.

Hopefully the job growth trend continues so everyone can get back to work and have a good reason to follow the blog!

Minnesota Is Still Better Than Wisconsin

I truly appreciate it when anyone reads this blog, whether they agree with me or not.  And I especially appreciate receiving feedback about the issues I've raised.  To that end, my cousin, Scott Welsh, who is a Wisconsin business owner (shameless plug for his real estate firm here) and fantastic human being, shot me a note giving me a ribbing on facebook for my recent post about the Wisconsin Assembly's vote to repeal the right to recover compensatory and punitive damages for employees who are the victims of employment discrimination.  His comment stated: 

        "I know...."us" big bad employer's in Wisconsin have it made???"

I presume Scott was likely speaking on behalf of many Wisconsin business owners who aren't my friends on facebook.  I also presume he withheld a number of expletives from his note because we were in each others' weddings.   

I should also include this disclaimer: In addition to being a lawyer, I am also an employer.  So if this post comes off as biased in favor of employers, please accept my apologies.

Anyway, Scott has a new champion in my friend Bart "T-Bomb" Torvik over at the Gillette-Torvik Blog, who is himself an attorney practicing in Illinois (just like Abe Lincoln!).  I should note that it is an undisputed fact that Mr. Torvik is a rabid fan/supporter/martyr of and for Wisconsin.  I'm not sure if that means he was sampled in this study or not. 

T-Bomb has taken my recent Wisconsin v. Minnesota post, and his co-blogger Adam Gillette, to task by arguing, among other things, (1) that the Wisconsin Fair Employment Act (WFEA), which currently provides compensatory and punitive damages for victims of workplace discrimination, costs employers more and stifles job creation because it creates an additional level of administrative hearings, and (2) that employees can simply go to federal court because federal law provides the same remedies as the likely to be repealed WFEA.  T-Bomb's blog post can be found here.  T-Bomb does an admirable job defending my cousin Scott, but I have a few bones to pick with his analysis.

Currently, an employee may file a complaint of workplace discrimination with Wisconsin's Department of Workforce Development (DWD).  The DWD has the power to investigate the claim, hold hearings and award an employee back pay, reinstatement, costs and attorneys' fees upon a finding that the employer engaged in discrimination.  Repealing the WFEA in the manner proposed will not take away any of these administrative proceedings or remedies.  Instead, under current law, after an employee has already proved discrimination once at a hearing in the DWD, she has to then go to state court and again prove discrimination in order to recover compensatory and punitive damages.  It is the right to go to state court to recover these damages that is in danger of being repealed.

I can't dispute that the proposed legislation would reduce the attorneys' fees and costs (in addition to the potential damages) an employer may incur defending against a claim.  But if reducing the cost of the proceedings is truly the goal here, then what the Assembly really should do is give the DWD the power to award compensatory and punitive damages after a hearing and finding of discrimination, rather than make the employee and employer go through two seperate proceedings.  That would do away with the additional procedural cost of having to litigate the claim twice while requiring only those employers who are guilty of discrimination to pay more in damages.  Win-win.

One could also argue that an employer could avoid unwanted attorneys fees and costs by not discriminating against the employee in the first place.

I also want address T-Bomb's argument that anti-discrimination laws cost employers money.  Of course they do.  But taking that argument to its logical conclusion means we should do away with all anti-discrimination legislation because they cost employers money and may, theoretically, result in less employees being hired.  I know there are probably people out there who think that may be a good thing.  My guess is that they have never met or do not really know someone who has been the victim of discrimination.  Moreover, while it has had its ups and downs, I think the American economy has done quite well since 1964 when Title VII, the first federal anti-discrimination statute, was enacted into law.  At the same time, minorities, women and others have received substantial benefits at work and in society at large because of these anti-discrimination statutes. 

I also take issue with the whole premise that reducing the damages paid by employers that have been proven guilty of discrimination will create jobs.  First, there is no guarantee that the employer who is relieved of paying compensatory and punitive damages is going to run out, create a new job and hire a new employee with that "savings."  Second, are these the employers we want creating jobs?  Remember, these are folks who have already been found guilty of workplace discrimination.  My guess is that working for an employer who discriminates against its employees is much more demoralizing than working for an employer who does not discriminate in the workplace. 

This management study argues that high employee morale leads to an increase in productivity and other significant benefits while low employee morale leads to a decrease in productivity, employee turnover, and other significant costs to the employer.  So by letting guilty employers keep some of that cash, Wisconsin is encouraging the creation of jobs that will necessarily be less productive than if those funds were used elsewhere.  No wonder they are drinking so much in Wisconsin!  My guess is that providing compensation to that employee who proved she was the victim of discrimination to compensate her for her emotional distress would raise her morale and make her more productive which would truly benefit Wisconsin.

And T-Bomb's co-blogger Adam Gillette points out that neither T-Bomb nor the propaganda he links to from the Wisconsin Civil Justice Council, Inc. (Ironic name, isn't it?) in his post provide any data supporting the falicy that fewer anti-discrimination laws and penalties results in more jobs. 

T-Bomb next argues that employees aren't really harmed by this proposed legislation because federal law provides a recovery for compensatory and punitive damages in federal court.  That is true, but if the goal is to reduce litigation costs, the evidence shows federal court costs as much, if not more, than the procedures under the WFEA.

First, federal law mandates that, just like in Wisconsin, employees go through an administrative process at the Equal Employment Opportunity Commission (EEOC) before bringing suit.  After that administrative procedure, the employee then must bring a lawsuit in federal court to recover any compensation.  Thus, the federal system also requires both an administrative and judicial step to resolve these claims.  No cost savings there.

Moreover, the costs of litigation in federal court tend to be higher than in state court for all parties.  And don't forget (because I know you knew this), the federal courthouses in Wisconsin are located in Milwaukee and Madison.  Conversely, state courts are located in every county throughout the state. Typically, both the employee and employer reside in the same or adjoining counties.  It would appear that for a large segment of Wisconsin's population, the travel and litigation costs associated with a state court action are arguably much less than those in federal court.  Thus, there does not seem to be evidence to prove that litigating in federal court is any cheaper, and in fact may be much more expensive, than under the WFEA.

In sum, it does not appear that repealing the WFEA will result in the job creation or economic benefits argued by its proponents.  Nor will it reduce the cost of litigation.  Instead, this proposed legislation prevents employees who have been discriminated against from recovering damages in the most economical and geographically convenient venue, state court.

Because this is the Minnesota Employment Law Blog, I should also briefly compare Minnesota's anti-discrimination law to Wisconsin, which is really, for our readers, the true test of who wins this border battle.  The Minnesota Human Rights Act provides broader protection against discrimination than both Wisconsin and federal law.  It also allows the employee the choice of bringing a lawsuit in court right away or submitting the claim administratively to the Minnesota Department of Human Rights.  Employees can recover back pay, front pay, reinstatement, unlimited conpensatory damages, punitive damages up to $25,000 and their attorneys' fees and costs if they are successful.  In some cases, the court can award an employee up to three times their actual damages.  By this measure, Minnesota is by far a better environment for employees than Wisconsin.  Hense the title of this post.  T-Bomb can't quarrel with these facts.

And one final note.  I went to school at the University of Iowa, so this blog has a strong policy against Iowa bashing.  Go Hawks!

Another Reason Minnesota Is Better Than Wisconsin

I can think of a number of reasons why Minnesota is better than Wisconsin.  Professional hockey, a more vibrant cultural scene, a lower unemployment rate, not being referred to as a "cheesehead" or other similar state-based derogatory nickname, and according to this report, Wisconsin has the highest rate of binge drinking and heavy drinking in the country.  (See p. 51 of the report)  Some may place that last statistic in the plus column for Wisconsin, but I digress.

The Wisconsin Assembly has given those of us in Minnesota another reason to cheer, while at the same time providing me an additional reason to trash on Wisconsin.  Specifically, the Wisconsin legislature has passed two pieces of legislation that severely restrict the rights of employees to sue and receive compensation for workplace discrimination.

First, the Wisconsin Assemby passed a bill that repeals an employee's right to recover compensatory and punitive damages when they have proven in court that they were the victims of workplace discrimination or harassment.  While the bill has not been signed by Governor Scott Walker, I have no doubt he intends to sign it. 

But what does that mean to everyday employees in Wisconsin?  In these cases, compensatory damages often take the form of monetary compensation for the emotional distress they experienced when they were illegally discriminated against / terminated by their employer.  And let's not forget, they recover these damages AFTER they have proven in court that they were the victims of discrimination.  So these damages are only available to those employees who have proven that their boss was a biggot, sexist, etc. 

The fact that someone may experience emotional distress when they are fired for their race, age, disability, gender, etc. is not a tough concept for folks to grasp.  As one article states, the emotional toll the loss of a job creates is compounded when the job loss occurred for a discriminatory reason.  Moreover, most of us intuitively understand how being sexually harassed in the workplace may cause, in some instances, severe emotional distress. 

Punitive damages are those damages that are awarded against employer only when an employee makes an additional showing that the employer knowingly violated the anti-discrimination law at issue.  In other words, these damages are only available when an employee can prove that the employer knew discriminating against the employee was illegal but consciously decides to do it anyway.  I can tell you that obtaining punitive damages in discrimination cases can be, as a practical matter, difficult.   

Wisconsin has passed this law presumably as part of some "pro-jobs" political agenda.  However, one has to question how denying victims of discrimination full compensation for the workplace discrimination they experienced creates jobs.  I guess the employer could use that extra cash to hire a younger, male, non-disabled person, but I doubt that argument is one anyone is willing to legitimately make.  Moreover, the victims of discrimination are often terminated, resulting in less jobs, not more.  Removing some of the teeth from these anti-discrimination laws could lead to an increase in discriminatory terminations because employers know the cost of engaging in discrimination is significantly less.  Conversely, the realization that it may be liable for compensatory and punitive damages may deter an employer from engaging in a discriminatory termination, thus keeping a job.  But I'm not a statistician, I'm a lawyer.

The other bill that passed the Wisconsin Assembly and is presumably sitting on Governor Walker's desk is even more bizarre.   The Assembly has voted to repeal the state's Equal Pay Act (EPA), which guarantees women the same pay as men for doing the same work.  I never would have guessed that there are people who would have the guts to publicly admit they have no problem paying women less than men, but I've been proven wrong again.  And the irony of course, according to this representative, is that pay disparity between men and women has significantly dropped in Wisconsin since the passage of Wisconsin's EPA in 2009, which most of us would assume to be a good thing. 

Assuming the argument for repealing the EPA is again some "pro-jobs" agenda, one may try to challenge the premise that engaging in overt sexism leads to job creation.  Reasonable minds (and most women) may not see the nexus between the two.  So I'm here to explain it.  See, if you pay women half of what men make, you can hire two women for the price of one.  We just created a job!  Get it?  And you wonder why those Wisconsinites have a such a problem with alcohol....

Governor Dayton Vetoes "Tort Reform" Bills

Minnesota Governor Mark Dayton vetoed four alleged "tort reform" bills that the legislature had recently passed.  These bills would have cut the statute of limitations (the time in which you must bring a suit after the injury or illegal conduct occurred) on many negligence claims (such as personal injury claims) from six years to four, would have made it much more difficult for plaintiffs to obtain class action status, would have reduced the availability of attorneys' fees awards in employment claims and significantly reduced interest rates a plaintiff could recover on a judgment.

In vetoing these bills that proponents had labeled "jobs bills," Dayton noted that they did not create any jobs.  Dayton also stated that he did not understand why these bills were necessary to create a better business climate in Minnesota when the U.S. Chamber of Commerce ranks Minnesota near the top of the list when it comes to the treatment of business in the courtroom.

For employees, the governor's veto of these bills was a significant.  Many times employees come to me with claims that may be low in dollar value but it is clear that their employer has broken the law.  These employees are also often out of work because they have been illegally fired and can't afford to pay an attorney.  Without the possibility of obtaining attorneys' fees from the employer upon a showing that the employer violated the law, attorneys like myself could not afford to represent employees and these illegal practices would go unpunished.  Also, the right of  employees to bring a class action lawsuit when their claims and damages are sufficiently similar is also a strong tool that provides redress for illegal employment practices.

Things At Work Aren't Always As Clear As They May Seem

The Eighth Circuit Court of Appeals released an opinion today in which it affirmed the dismissal of Karen Chambers' lawsuit against The Travelers Companies, Inc.  Chambers was employed by the insurer as a managing director and oversaw six underwriters in her department.  In 2007, Travelers' human resources department received a complaint that Chambers had a "controlling" management style, brought personal stress to the department, made inappropriate religious comments and sold religious items in the office.  Travelers chose to conduct a "climate survey" of Chambers' department to see if others shared these opinions.

It turns out they did.  According to the court's opinion, the employees who reported to Chambers described their work environment as dysfunctional, team morale as low or non-existent, and Chambers' management style as "blame and shame" (I personally had never heard of that one before, which is remarkable).  They also stated they felt pressured into purchasing religious items she sold for missionary trips so they wouldn't be on her "bad side." 

Travelers reported their findings to Chambers in a meeting.  They provided her with some of the information from the climate study and asked for her response.  Chambers was not receptive to the criticism.  Chambers was subsequently placed on a written warning for her behavior.

According to the opinion, Travelers subsequently discovered that Chambers had taken family members on business trips and may have expensed their meals and drinks to the comapny.  She was then terminated.

Chambers brought suit claiming that the employees who disciplined her defamed her in the written warning and by telling her that she was being terminated for "continuing issues."  She also sued for breach of contract, claiming she was entitled to a $30,000 bonus for the year 2007.

The court affirmed the district court's decision to throw Chambers' claims out of court.  Specifically, the court noted that Travelers and its employees had a "qualified privilege" to make the allegedly defamatory statements.  A qualified privilege exists where an individuals is making a statement "upon a proper occasion, from a proper motive and based on reasonable or probable cause."  Oftentimes, communications between an employer's agents made in the course of investigating or punishing an employee for misconduct will be protected by the qualified privilege.  However, where the employee can show "actual malice," that is, the statement was made from "ill-will and improper motives, or causelessly or wantonly with the purpose of injuring the employee," the privilege will be lost.

Chambers argued that the employees who investigated the incidents did not conduct a thorough investigation and therefore they acted with actual malice. The court held that pointing to instances where Travelers might have done a better job in its investigation does not meet the actual malice standard.  However, if Chambers could have provided evidence that the individuals was skewed or slanted their findings, or were biased in some way, Chambers likely would have presented sufficient evidence to get her claim in front of a jury.  The take-away from this claim is that negative (and arguably defamatory) statements made during an investigation by an employer into alleged misconduct are typically privileged and no claim for defamation will exist.

The court also threw out her claim for the $30,000 bonus.  Specifically, the court cited Travelers' policy which stated that the bonus payment Chambers was seeking "are discretionary awards used to reward superior performance."  The court held that when a contract term (here the bonus policy) leaves a decision to the discretion of one party - here, Travelers had the discretion whether to award the bonus - a court won't second guess that discretionary decision.  In addition, Travelers' policy stated that an employee is eligible for the bonus only if they are employed on the date the bonuses were distributed.  Chambers had been fired by that time.  Therefore, the court threw out that claim as well.  The take-away from this claim is that you need to review your employer's compensation policies carefully.  Those policies are often very one sided in favor of the employer and do not always entitle you to the bonus or other compensation you feel you have earned.

If you have questions about any of these issues, feel free to contact me at your convenience.

Your Boss Is Big Brother, Part 2

I recently saw this article about how access to the internet, the use of social media and how important connectivity is so important to the next generation of workers.  These "digital natives" as they are sometimes referred, would prefer a lower paying job that provides them flexibility on their use of social media, the location of where they work  and the devices they use to complete their work rather over a high paying job that restricts these practices. The author raises some questions for employers that look very much like the ones I raised in my prior post on social media and employment.  The questions in the article included:

• What is the appropriate level of openness? Should employees be prevented from slamming their bosses' ideas, for example? Should managers be restricted in the kinds of things they can say to or about employees?

• How much blurring of public and private life is too much? Social media encourages people to mix work- and nonwork-related communication, but some workers prefer to keep their social lives strictly off-limits.

• How can the company prevent abuse of social media? Things can get ugly quickly — all it takes is one thoughtless comment. Employees and managers need to know that there will be serious consequences for any misuse of this potentially combustible form of communication.

• When employees from VPs to interns are sharing company information on Twitter, on Facebook, and in blogs while your competition is watching, how do you ensure that your employees understand what information is confidential and what is public?

This is just another reminder that as our mobile devices and use of social media become an integrated part of our work life that we should remember Big Brother will be watching....

Your Boss Is Big Brother

I can almost guarantee Noah Kravitz did not see this coming: Getting sued by his former employer for $340,000 because his former employer, PhoneDog, claimed his Twitter followers were a "trade secret."  PhoneDog is a company that reviews mobile devices like phones and tablets.  Kravitz was a writer for PhoneDog from 2006 until his resignation in 2010.  At the time Kravitz resigned, he had approximately 17,000 Twitter followers on his handle "PhoneDog_Noah."  When he quit, he changed the Twitter handle to "noahkravitz" but kept the 17,000 followers.

PhoneDog claims that Kravitz' Twitter followers were a "customer list" and "trade secret" that belonged to the company and brought suit in July 2011.  Specifically, PhoneDog sued for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (theft).  Kravitz sought to have the claims thrown out of court because he claimed the court lacked jurisdiction to hear the case.  The court basically denied Kravitz' motion and is allowing the suit to move forward.

This case is interesting for a couple of reasons.  First, it highlights the intersection of social media and the workplace.  Are these Twitterers following Kravitz or the company?  Does that matter? Who owns the Twitter account if Kravitz set it up on his own and was simply doing his employer a favor by tweeting a promotion once in a while?  Can Twitter "followers" be a customer list given how fluid they may come and go and given the fact that most of them have likely never done business with PhoneDog?  And how is it fair if these questions are answered in Kravitz' favor but he has to pay tens of thousands of dollars in attorneys' fees to establish he was in the right?  This is all food for thought when any employee is venturing out into the social media universe on behalf of their employer.  And it is a call for employers to make sure they have a well written social media policy that communicates the understanding of what constitutes company property, intellectual or otherwise.

Second, as this article points out, Kravitz claims that the company's lawsuit was brought only after he sued the company for failing to pay him his earned compensation following his resignation.  While this may appear like a clear case of retaliation, Kravitz may not have a cause of action if he were to sue in Minnesota.  Minnesota's Whistleblower Statute only provides protection for current employees.  Because the retaliation in question took place after he quit, he would have no viable claim.  Furthermore, Minnesota's wage and hour statutes also do not have an anti-retaliation cause of action on which Kravitz could base a claim.

I will leave you with a few additonal thoughts about social media and the internet:

1. Anything you do on your company's computers (email, internet searches, facebook, twitter, etc.) is not private.  It is the company's computer, internet connection and email server that is in use, not yours.  You have no expectation of privacy.  Assume that your employee is reviewing everything you do on your work computer and act accordingly.

2. Things you put on social media about your employer may come back to haunt you.  I would guess at least one of your "friends" is a coworker.  Status updates like "My boss suckz!!!" have an uncanny knack for finding their way back to your boss.  When you are fired for this, please spare me the phone call.  You don't have a claim.

3. Don't have your settings set to "public" while your profile picture is of you doing a keg stand at the frat house.  Employers are constantly sifting through social media and other information on the internet to find out about job applicants and current employees.  They use this information to find a reason to disqualify you from consideration, not to see if there are any other awards or accomplishments you inadvertantly left off your resume.

4. And finally, if Mr. Kravitz and PhoneDog have taught you anything, keep your personal social media accounts and email addresses seperate from your work accounts. 

Simply Being At The Center Of A Storm Doesn't Provide A Cause Of Action.

According to reports, Michael Brodkorb, the former communications chief of the Minnesota Senate and and deputy chair of the state Republican party, has hired attorneys to pursue potential legal claims relating to his termination from his position in the Senate.  Brodkorb was terminated in December, a day after former Senate Majority Leader Amy Koch resigned her leadership position for having an affair with an unidentified male Senate staffer.  The fact that Brodkorb was terminated the next day has raised speculation that he may have been the staffer with whom Koch was having the affair.

So what possible claims could Brodkorb have against the Senate? 

At the outset, it appears Mr. Brodkorb, as an employee of the Senate, was a member of the "Unclassified Service," which means he was not a member of a union.  Generally, union member are subject to a contract called a "Collective Bargaining Agreement" (CBA) that oftentimes provides greater job rights and protections than are available to the average worker.  Because Mr. Brodkorb does not appear to be a union member, he likely will not have any claims under a CBA.  Indeed, the Senate is claiming he signed an agreement of some type which states he was an employee at-will, meaning he could be fired for any reason so long is it is not an illegal one.

It is difficult to know what claims Brodkorb has because there have been no reports as to the reason for his termination and no one has confirmed that he was the staffer who had the affair with Koch.  If Koch, however, used her position to force Brodkorb into having sex with her, he may have a claim for sexual harassment.  Such a situation, known as "quid pro quo," oftentimes occurs where the employee is either threatened with adverse job consequences if he or she fails to engage in sexual contact with the supervisor, or is offered job perks in exchange for sexual favors.  All of this falls under the broad definition of sexual harassment found in the Minnesota Human Rights Act.  However, a voluntary sexual affair is not actionable.  From most reports, it appears that Koch's affair was one that was voluntary between her and Mr. X.

Brodkorb may also try to bring some type of defamation action claiming his reputation has been damaged.  Typically, to prove defamation, one needs to show (a) that a statement was false, (b) that the statement was communicated to someone other than the plaintiff, and (c) that the person's reputation was harmed.  Brodkorb would have significant other problems in bringing a defamation suit.  By being such a high profile political figure and former blogger, he likely would be considered a public figure.  Speech related to public figures and public issues is considered the most important type of speech by the courts.  Because of the First Amendment's clause granting us the freedom of speech, the courts provide individuals commenting on public issues significant protection from possible censorship through a defamation claim or otherwise.  Thus, public figures have to prove "actual malice" in order to succeed on a defamation claim.  "Actual malice" was defined by the U.S. Supreme Court as when the speaker knows the statement is false or speaks with a reckless disregard for the truth.  Courts rarely find that public figures are able to meet this standard.

It is difficult to know what Brodkorb would claim has been said about him that was defamatory.  The secrecy surrounding the reasons and circumstances for his termination are remarkable given his public position and the media attention it has received.  The Senate has not provided any reason for his termination.  No one has been quoted as saying he was doing a poor job, was incompetent, screwed something up or was Mr. X in the affair with Koch.  It is even more unlikely that he would be able to show any alleged statement met the actual malice standard.  However, until further details come out, we simply won't know.

In sum, the information in the public record to date does not indicate that Mr. Brodkorb has any legitimate claims.  Either way, given his public role and position, we have a right to know all the details of any alleged claim, especially if Brodkorb is paid a settlement with taxpayer money.