August 28, 2013

Civil rights in Minnesota: setting the national agenda?

Posted in Age, Color, Commission Membership, Creed, Disability, Discrimination, Gender / Sex, Marital Status, Minnesota Human Rights Act, National Origin, Public Assistance, Race, Religion, Sexual Orientation tagged , , , , at 1:24 pm by Tom Jacobson

“judged … by the content of their character.” Dr. Martin Luther King, Jr.

It’s a cornerstone of our democracy that laws must change when they do not fit the needs of the majority. Today, the 50th anniversary of the March on Washington for Jobs and Freedom and Dr. Martin Luther King, Jr.’s iconic I Have a Dream speech, is the perfect opportunity to reflect on how there may be no better example of that principle than the ongoing struggle for civil rights for all Americans.

When it comes to civil rights, Minnesotans have historically been trend setters, not followers (see 150 Years of Civil Rights in Minnesota, Minnesota Department of Human Rights). For example, Minnesotans bravely fought and died in the 1863 Battle of Gettysburg, and efforts to protect the rights of  Jews and Native Americans date back to at least the 1930’s. Twenty years before Dr. King’s speech, Minnesota Governor Edward Thye created a commission to study discrimination and economic inequality. In 1946 Minneapolis Mayor Hubert H. Humphrey created the Mayor’s Commission on Human Rights, and two years later Minneapolis enacted the country’s first municipal fair employment law. The Minnesota State Act for Fair Employment Practices (which was the predecessor to the Minnesota Human Rights Act) pre-dated the federal Civil Rights Act of 1964 by nine years. When that state law was passed, the Minnesota Legislature declared:

[T]he public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national origin, and to safeguard their rights to obtain and hold employment without discrimination. Such discrimination threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.

Since its initial passage, the MHRA has of course been amended several times to add sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, and age to its list of protected classifications. Some of those characteristics are now also protected by federal law,

In June I had the privilege of leading off a morning of presentations at the tenth annual West Central Minnesota Employment Law Update. To put things into perspective, I noted how the law is always playing “catch up.” That is, laws are passed in response to societal change. I suggested that if you want a glimpse into what our laws might look like in the future, pay attention to societal trends now. Let me take that a step further; to envision our nation’s future civil rights landscape, take a look at Minnesota today. But don’t look through rose-colored glasses, for much work still needs to be done to eliminate the vestiges of discrimination that continue to threaten the rights and privileges of the inhabitants of this state and nation and menace the institutions and foundations of democracy.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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August 19, 2013

He’s no woman, but hear him roar

Posted in Discrimination, Equal Pay, Gender / Sex tagged , , , , , , at 11:34 am by Tom Jacobson

I am woman. Hear me roar. Ray Burton  / Helen Reddy  (1971)

Peace 2One of my sisters started college the same year I started kindergarten – 1970 (that’s my weak attempt at noting in a politically correct way how much younger than her I am). I gained from her an appreciation of the great music of that era, plus she was for me a window to the world of civil unrest in America during the late 1960’s and early 1970’s.

I have a vague memory of her coming home after applying for a summer job at a local gas station and telling our parents that she didn’t get the job after being told something like, “Girls don’t work at gas stations.” If that were to happen today, I suspect we’d be filing an EEOC charge faster than you could say “Title VII.” Thankfully, such overt discrimination is rare in today’s workplaces, but recent headlines about the “glass ceiling” (see Gender pay gap at exec levels: Why women aren’t paid the same as men, CBS News Aug. 14, 2013) remind us that another form of gender discrimination — unequal pay for equal work — persists.

Generally speaking, the Equal Pay Act of 1963 says that except in certain gender-neutral circumstances, employers must not discriminate between employees on the basis of sex by paying them at a rate that is less than what they pay employees of the opposite sex for equal work. While we typically think of this as a rule that prevents employers from paying women less than men for the same work, a recent Minnesota case highlights that the law is gender neutral: men also must not be paid less than their female counterparts.

The case, Barron v DeCare Dental, LLC involves Patrick Barron’s allegation that he was paid less than his female co-workers and was otherwise unlawfully discriminated against by his employer. The employer asked the court to dismiss the EPA claim because of evidence suggesting that the differential was based on factors other than sex, namely conduct issues, review scores and length of employment. However, other evidence presented to the court undermined DeCare’s argument. Specifically, Barron presented evidence suggesting that some female employees were paid more despite less tenure, that performance issues had historically not been an issue, and that a supervisor testified how it would be “unfair” to pay Barron less. Because of these disputed facts, the court denied DeCare’s motion to dismiss and ordered the case to proceed to trial.

What you need to know: The Barron v. DeCare case is not ground-breaking, but it does remind us of a couple of key concepts:

  • The EPA makes it unlawful for employers to pay employees less than their co-workers of the opposite sex, unless the differential is based on specified gender-neutral criteria.
  • The EPA itself is gender neutral; that is, it protects both male and female employees.
  • Inconsistencies in the evidence submitted to support an employer’s claim that pay differentials are based on factors other than sex will weaken that defense and likely send the case to trial.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 9, 2013

Six years to bring drug test claims, says MN Supreme Court

Posted in Drug and Alcohol Testing, Limitation of Actions, Minnesota Drug and Alcohol Testing in the Workplace Act, Statutes of Limitation tagged , , , , , , , , , , , at 7:39 am by Tom Jacobson

 “Time keeps on slippin, slippin, slippin into the future.”
Fly Like an Eagle, Steve Miller Band (1976)

Fly Like an EagleDeadlines. They are those points in  time by which we have to get stuff done. If we miss them, we suffer the consequences.

When it comes to lawsuits, those deadlines are called statutes of limitation, and missing them has a very severe consequence: if claimants do not start their lawsuits within the time allowed by law, they are forever barred from doing so, no matter how good their cases may have been. Those deadlines vary depending on the nature of each case, and sometimes the courts have to step in and decide which statute of limitations applies.

For example, in the recent case of Sipe v STS Manufacturing, Inc. the Minnesota Supreme Court had to decide which statute of limitation applies to claims for wrongful discharge brought under the Minnesota Drug and Alcohol Testing in the Workplace Act (“MDATWA”). In that case, Terrance Sipe was fired in 2008 after a positive drug test. Nearly three years later, he sued STS and Labor Ready/True Blue, claiming they violated MDATWA, which gives an employee a cause of action against those who violate the statute. STS and Labor Ready argued that Sipe’s claims were barred by the two-year statute of limitations “for libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury.” Sipe argued that the six-year time limit for “liability created by statute” applied. The Court agreed with Sipe. Specifically, the Court reasoned:

Because Sipe’s claim under [MDATWA] was created by statute, …  it is subject to the six-year statute of limitations … as a cause of action “upon a liability created by statute.”

What you need to know: Time does indeed slip into the future, and as it does, the deadlines for taking action to protect legal rights draw nearer. Those deadlines vary depending on the nature of each claim.  Some are measured in years – others in days. Therefore, those who think  they may have any legal claim need to act quickly to avoid losing their legal rights. For claims under MDATWA, that timeline is six years from date of the violation. This makes it that much more important for employers to know and understand how drug and alcohol testing can be done legally in the Minnesota workplace, and it also underscores the importance of record retention, for violations can be challenged up to six years after the fact.

For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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