Discrimination

By Rocket55DevAdmin |

When President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law more than a quarter century ago, it represented a sea change for the rights of those who have disabilities and their access to housing, transportation, places of business, and employment opportunities.

Hearing impaired man working on laptop at office
Side view of hearing impaired man working on laptop at office

Like other laws that prohibit discrimination in employment against people because of their race, gender, national origin or religion, the ADA and parallel state laws, such as the Minnesota Human Rights Act (“MHRA”), protect disabled people from adverse decisions and actions in hiring and firing and the terms and conditions of employment. Unlike those other laws, however, the ADA and the MHRA also impose affirmative obligations on employers to make “reasonable accommodations” for an employee’s disability – upon the employee’s request – if the worker can otherwise perform the job’s essential functions.

The failure to provide reasonable accommodations, as well as an employer’s failure to engage in a mandated “interactive process” with the employee to determine the feasibility and scope of the accommodation, violate state and federal law. Accordingly, an employee with a disability who asks for a reasonable work environment, schedule, or other employment changes, must understand their rights and available remedies if the employer engages in reasonable accommodation discrimination. 

What Is Reasonable Accommodation In the Workplace?

Under the ADA and the MHRA, the obligation to provide reasonable accommodations to disabled employees applies to employers that have 15 or more employees. Generally, a reasonable accommodation is any change in the work environment or in how a job is customarily performed that enables a disabled individual to apply for a position, do the job, or gain equal access to the benefits and privileges of that job. 

What Does “Reasonable” Mean?

The “reasonable” part of the accommodation means the requested or proposed modification is one that doesn’t cause the employer “undue hardship.” Undue hardship means the accommodation would involve significant difficulty or expense when considering the resources and circumstances of the particular employer relative to the cost or difficulty of providing a specific modification. 

What Are Examples of a Reasonable Accommodation?

Common examples of reasonable accommodation in the workplace include providing:

  • Modified workspaces to allow for physical accessibility
  • Modified or flexible work schedules, including allowing remote work
  • Devices, equipment or assistive technology
  • Qualified readers and interpreters

Generally, the following modifications wouldn’t be considered reasonable accommodations:

  • Removing an essential function or hiring someone else to perform the function
  • Reducing production or performance standards
  • Reassigning the employee to a different supervisor
  • Promoting the employee to a higher position
  • Provisioning “light-duty” items
  • Excusing misconduct
  • Providing “personal-use items,” such as eyeglasses, wheelchairs or prosthetic limbs

While an employer doesn’t need to provide a requested or proposed accommodation if it would cause significant difficulty or expense, it’s obligated under the MHRA (but not the ADA) to make “documented good faith efforts to explore less restrictive or less expensive alternatives, including consultation with the disabled person or with knowledgeable disabled persons or organizations.” This consultation requirement is part of the “interactive process” between the employer and employee regarding accommodation mandated by federal and state law.

How and When Should I Request a Reasonable Accommodation?

The process of exploring a reasonable accommodation begins when an employee requests modifications to their job or work environment. Written requests aren’t required. The employee can make a request in face-to-face conversation, email or any other communication method. The request can be made in “plain English” and need not mention the ADA or state disability law or use the phrase “reasonable accommodation.” 

An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. Neither the ADA or the MHRA precludes an employee with a disability from requesting a reasonable accommodation because they did not ask for one when applying for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable accommodation when they know that there is a workplace barrier that is preventing them, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment. As a practical matter, it may be in an employee’s interest to request a reasonable accommodation before performance suffers or conduct problems occur.

What’s the Interactive Process for a Requested or Proposed Accommodation?

An employee’s request is the first step in the “informal, interactive process” between the employer and the employee as to providing a reasonable accommodation.

As set forth in the MHRA, “this process should identify the limitations resulting from the disability and any potential reasonable accommodations that could overcome those limitations.” The employer can ask the employee relevant questions to make an informed decision about the request, including asking about the employee’s disability and functional limitations and what type of reasonable accommodations are needed. 

An employer isn’t required to provide a specific requested accommodation but may offer alternative suggestions and discuss their effectiveness and feasibility with the employee. 

How Long Does an Employer Have to Accommodate a Disability?

While neither the ADA nor the MHRA sets a specific time frame for engaging in the interactive process and implementing a reasonable accommodation, an employer can’t unreasonably drag its heels. As the Equal Opportunity Employment Commission (EEOC) stated in guidance on this point:

An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

Is Your Minnesota Employer Engaging in Reasonable Accommodation Discrimination?

Given the nuances and fact-specific analysis involved in determining whether an accommodation is “reasonable” and whether an employer has met its obligations under Minnesota and federal law to engage in a good faith interactive process, it can be difficult for an employee to know if the employer has engaged in prohibited reasonable accommodation discrimination. 

As discussed, not every denial of a requested modification violates the law. But when an employer’s response doesn’t meet the requirements of Minnesota or federal law, the lack of accommodation for an employee with a disability can mean the loss of a job opportunity or a paycheck, be a major career setback, and cause psychological stress. For all these reasons, state and federal laws provide such employees with remedies if they experience reasonable accommodation discrimination. These not only include requiring employers to make reasonable accommodations, but also can involve hiring, promotion, reinstatement, back pay and attorneys’ fees. 

The Role of An Attorney In Workplace Discrimination Cases

If you’ve requested a reasonable accommodation to address your disability or limitations and your employer denied your request or didn’t respond to it, speaking with an experienced disability discrimination attorney is the best way to understand your rights, determine whether your employer violated the law, and pursue any available remedies, including compensation. 

Contact Halunen Law Today To Discuss Your Workplace Discrimination Questions and Concerns

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

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

By Rocket55DevAdmin |

Although there is increased awareness and effort by many employers to improve inclusivity in the workplace, it remains the case that many individuals with disabilities are forced to leave their jobs or are terminated because their employers are unwilling to address reasonable accommodation requests.

Visually impaired businesswoman doing a presentation in a business meeting with guide dog

The article “7 Key Accommodations Disabled Workers are Due,” offers important insight into steps employees and employers must take to ensure workplace equity and compliance. 

Read the full article.

By Rocket55DevAdmin |

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

Female doctor looks over medical record for upcoming appointment

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

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

Intersectional Discrimination Defined and Recognized

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

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

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

Sex-Plus-Age Discrimination Claims

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

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

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

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

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

The court thus concluded that: 

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

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

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

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

Pamela headshot

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

By Rocket55DevAdmin |

In her article “The Longer a Woman’s Career, the Greater the Gender Pay Gap,” published in Women On Business, Halunen Law attorney Pamela Johnson shares insights on the recent Pew Research Center report, The Enduring Grip of the Gender Pay Gap. Citing the inverse correlation between years worked and pay equity, the report’s authors concluded that while “women generally begin their careers closer to wage parity with men … they lose ground as they age and progress through their work lives, a pattern that has remained consistent over time.” Johnson provides an analysis of this important report, what’s behind the pay inequity obstacles facing women in the workforce, and the steps needed for sustainable change.

Read the full article as published on Women on Business.

Pamela headshot

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

By Rocket55DevAdmin |

Business Woman Signing Documents Deal Concept

Most employers don’t offer severance packages to laid-off employees out of the kindness of their hearts. They do so because they’re buying something. That something may be employees’ release of any harassment or discrimination claims or promises not to solicit employers’ customers. Employers also use severance agreements to buy employees’ silence. As a result, employees are frequently barred from discussing the terms of their agreements or making disparaging remarks about their employers.

But under a Feb. 23, 2023, National Labor Relations Board (NLRB) ruling, employers can’t use severance agreements to silence laid-off or furloughed employees. Reversing a decision made under the previous administration, the board held in McLaren Macomb that requiring a laid-off employee to sign a nondisclosure and nondisparagement agreement as a condition of receiving severance benefits violates the employee’s rights under the NLRA.

Specifically, the board found that “a severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their [NLRA] Section 7 rights, and that employers’ proffer of such agreements to employees is unlawful.”

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

While that language may sound like it only applies to unionized workers, Section 7 applies to all nonmanagerial or nonsupervisory employees (except airline and railroad employees), whether in a unionized workplace or not.

Agreements Can’t ‘Preclude an Employee from Assisting Coworkers With Workplace Issues

In McLaren, 11 furloughed employees signed severance agreements that contained the following common nondisclosure and nondisparagement language that the NLRB ultimately found unlawful:

Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.

Nondisclosure. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents and representatives.

The board determined that “[p]ublic statements by employees about the workplace are central to the exercise of employee rights under the Act.” Accordingly, “a severance agreement is unlawful if it precludes an employee from assisting coworkers with workplace issues concerning their employer, and from communicating with others, including a union, and the Board, about his employment.”

Not only did the board hold that such agreements were unlawful, but it also concluded that proposing provisions that restrain employees from discussing the terms of their employment or severance violates the NLRA:

Where an agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer of the agreement itself violates the Act, because it has a reasonable tendency to interfere with or restrain the prospective exercise of Section 7 rights, both by the separating employee and those who remain employed.

What the Decision Means for Laid-Off Employees

Decisions like McLaren are the primary means through which the NLRB makes and enforces policy. As such, this case now represents the board’s official position on these provisions in severance agreements. When the board reviews similar agreements in the future, it will rely on the McLaren decision to guide its analysis, unless a court of appeals vacates the decision.

As a result, employers may have a difficult time enforcing existing severance agreements that contain nondisclosure or nondisparagement provisions like those above. If you’re a recently or soon-to-be laid-off employee and receive a proposed severance agreement, the NLRB decision is one more reason to consult with experienced employment counsel before signing anything. Understanding your rights, as well as the limits on what employers may ask of you, can be the key to negotiating and securing the best possible severance package.     

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

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

By Rocket55DevAdmin |

bored-colleagues-with-laptops-on-desk-sitting-in-office

Whatever else they may be, most employers aren’t dumb. They know that engaging in discrimination, harassment or retaliation against protected groups in hiring and employment practices is illegal. They also understand that discrimination, harassment and retaliation claims can negatively affect their finances and their reputations.

That’s why workplace discrimination is often subtle and nuanced rather than overt and obvious. Some workers may experience blatantly wrongful conduct, such as racial slurs or inappropriate sexual behavior; but rare is the employer who comes right out and says to a job candidate, “Sorry, but we don’t hire Black people,” or tells an employee that they’re being paid less because they have a disability.

As such, it may not be readily apparent to workers that they’re victims of prohibited workplace discrimination. Even when they think their employers or supervisors are treating them unfairly, such as denying them raises or reducing their hours, they may not recognize if such actions are based, in whole or in part, on their race, gender, age, religion, national origin, disability or other characteristic protected under federal and state anti-discrimination laws.

That’s why employees should be aware of the many ways that employers can engage in illegal discrimination. Rather than accepting such mistreatment or seething in frustration, workers on the receiving end of discriminatory conduct can take action to hold their employers accountable under the rights and remedies provided by law.

If you experience or become aware of the following, you should consider meeting with an experienced employment lawyer who can evaluate your circumstances, conduct further investigation and advise you on how to proceed.

Unfair Promotion Practices and Limitation of Opportunities

One of the most fundamental forms of workplace discrimination involves “unfair treatment” because of an employee’s membership in a protected class. This often manifests as disparate treatment in promotions, opportunities, job responsibilities or hours. Common examples of such actions, which are illegal if based on an employee’s protected characteristics, include:

    • Involuntary reduction of hours
    • Assignment to undesirable or less-favorable shifts
    • Reassignment to a different department or location
    • Removal or limitation of job responsibilities
    • Exclusion from meetings or other communications
    • Denial of opportunities to work with certain clients
    • Assignment to less profitable territories
    • Patterns of people in specific groups who receive promotions over equally or more qualified workers
    • Inconsistent or unsupportable reasons given for denial of promotion or exclusion from opportunities

Unequal Treatment In Disciplinary Actions

Unequal discipline is another common form of workplace discrimination. Some signs of unfair and unequal treatment in disciplinary actions include:

    • Being disciplined for the same conduct that the employer excused or overlooks with other workers
    • Sudden or surprising negative performance reviews
    • Bypassing established disciplinary procedures or consequences
    • Disproportionate consequences for minor transgressions

Inappropriate Questions or Comments During the Hiring Process

Discrimination against job candidates is as insidious as discrimination against employees and can be equally hard to identify. Whether a company systemically discriminates against certain groups in hiring won’t necessarily be revealed on the basis of one rejected applicant. But further investigation is warranted if the company’s workforce lacks diversity in race, gender, age or other protected characteristics. The scrutiny may uncover discriminatory intent or effect.

But discrimination may also subtly reveal itself in the interview process in the form of inappropriate questions or comments. Any inquiries about age, race, national origin, gender, religion, marital or family status, and disabilities are prohibited. But an interviewer may not be direct when probing these off-limits areas. Instead of asking, “How old are you?” they may ask, “When did you graduate from college?” Rather than asking, “What’s your ethnicity?” they might say, “That’s an interesting accent. Where is that from?”

No matter what form it takes, workplace discrimination is illegal. It unfairly deprives qualified individuals of opportunities or subjects them to hurtful and demeaning behavior or comments. No one should have to abide by or endure such treatment.

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

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

By Rocket55DevAdmin |

GettyImages-91783116 (1)

People quit their jobs for all sorts of reasons – better opportunities, shifting priorities, or the need to escape from uninspiring, frustrating or miserable situations. Whatever motivates workers to move to greener pastures, they typically want to leave with as little drama or animosity as possible.

They also want to depart with as much financial security and as many benefits as they can. Severance packages that include compensation and other considerations on your way out the door can provide that security. Many companies offer severance when they decide to let employees go or lay them off. But when employees quit for their own reasons, are they entitled to severance? If not, is there a way for them to get severance pay and benefits anyway?

Your Employer Probably Doesn’t Owe You Severance If You Quit Your Job

Federal and state laws impose many obligations on employers regarding pay and benefits – minimum wage, overtime pay, health insurance, COBRA and sick leave, among many others. But no law in Minnesota or any other state mandates that an employer provide severance to a departing employee, whether the employee was terminated or left voluntarily.

As such, your employer owes you nothing when you quit, other than such legally required benefits – unless your employment contract, collective bargaining agreement or company policy says otherwise.

How Do You Know If Your Employer Has Any Severance Obligations?

If you signed an employment agreement, review the terms carefully; ideally, with the assistance of an experienced employment lawyer. It may provide for compensation and benefits, even if you quit, so long as you meet certain conditions, such as giving sufficient notice or if you’re leaving for specified reasons. Similarly, review any provisions in your employee handbook regarding the employee exit process and any benefits available upon separation.

Why Would Your Employer Offer You Severance If It’s Not Required?

Even if your employment agreement or company policies don’t provide for severance, and your employer, therefore, owes you nothing, you may have more leverage to negotiate a severance agreement than you realize.

While your employer may be unlikely to offer severance out of the kindness of its corporate heart when you quit, it may offer or agree to a severance package out of self-interest. If you have potential discrimination or other legal claims, your employer may offer you severance pay or other benefits in exchange for you releasing such claims. Similarly, it may be important to your employer that you refrain from commenting publicly about an allegedly toxic or problematic work environment or practices and pay you to keep quiet. Effective July 1, 2023, your employer cannot negotiate for a non-compete agreement but may offer compensation in exchange for limits to your post-employment activities.

Don’t Quit Before Consulting With an Experienced Employment Attorney

Leaving a job is no small decision, and how you end your employment relationship is just as important as why you’re doing so. Don’t assume that you can’t get severance when you quit. If you put in your notice without first consulting an employment attorney, you risk leaving more than just your office keys on the table.

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

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

Pamela headshot

As a member of Halunen Law’s Employment Practice Group, attorney Pamela Johnson brings an impressive reputation for advocacy and achievement. Her clients benefit from her breadth of experience, stellar track record, and exceptional insight. She is particularly passionate about representing employees and strongly believes that everyone should be treated fairly, especially in the workplace. 

By Rocket55DevAdmin |

Close up of Employee termination form with pen and calculatorIf your employer has offered you a severance package as part of a Reduction in Force or RIF, you first need to understand that companies typically claim that RIFS are necessary for supposed financial reasons. In truth, though, RIFS are often used to get rid of older, more expensive employees and may constitute age discrimination. So – before you EVER accept an employer’s severance offer, it is wise to FIRST ask the following questions to determine whether you have any leverage in negotiating a better severance:

    1. Are there younger, less senior, less qualified people performing similar job functions who were not subject to the RIF?
    2. Is the reason you received for your selection for elimination suspect in some way; does the reason seem untrue because other options would make more business sense or because you have engaged in any activity, such as whistleblowing, that could make you a target in a RIF?
    3. Does the OWBPA Notice1 that was attached to your severance offer show a disproportionate number of older employees being impacted by the RIF?
    4. Does the selection criteria claimed in the OWBPA Notice make sense or is there a basis for you to challenge the criteria by comparing yourself with employees not selected and showing objectively how you were more qualified for the position?
    5. Did the employer provide preferential treatment to younger, less senior, less qualified employees who were not impacted (such as a transfer, promotion, demotion, reassignment, etc.)?

If you have reliable, objective evidence to challenge your employer’s decision to select you for a RIF, you may have leverage to get a better deal and it would make sense to contact a lawyer BEFORE you execute any severance agreement.  If you have age-related claims (or if you are a whistleblower, or suspect your employer has other illegal motives), an experienced employment lawyer can sometimes use this leverage to negotiate significantly more compensation in exchange for your agreement to release your employer from your prospective claims.

Maximizing leverage requires top notch negotiating skills and a thorough knowledge of the law.  Halunen Law knows what motivates employers to pay more because we have successfully negotiated severance agreements for over 30 years.   Our team of lawyers takes the time to gather the facts, create an action plan and demonstrate to employers why they need to pay our clients more—typically substantially more.

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

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

1Federal law requires that an employer provide employees being selected for a RIF with a disclosure that lists the names of ALL employees selected and not selected for the RIF; their job classification and their ages.  If you have not received this disclosure from your employer, you MUST request it.

Executive-level severance packages can be highly complex, with much at stake. Halunen Law’s employment attorneys have a depth of expertise and success in negotiating these sensitive cases at the highest levels. 

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

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

By Rocket55DevAdmin |

Coming off record low unemployment rates, businesses are increasingly shedding workers across the economy, affecting employees at companies ranging from 3M to Twitter to Yankee Candle. Fortunately, the law affords laid off individuals certain rights and protections, as summarized below: 

1. Am I Entitled to Severance?

In many countries, terminated employees are entitled by law to specified amounts of severance pay. (France, for instance, requires employees be paid one fourth their monthly salary for each year of service up to ten, one third for each year beyond that.) The United States takes a different approach. With limited exceptions applicable to employees (1) covered by Employee Retirement Security Act (“ERISA”) governed severance plans provided by some, mostly larger employers as an employee benefit, (2) having an employment agreement containing contractual severance, (3) in a union shop governed by a collective bargaining agreement with such protections, and (4) over the age of 40 (discussed below), nobody is legally owed a dime in severance.

2. If I’m Offered Severance, Should I Accept It?

Although not required to do so, most employers offer those laid-off severance pay as a matter of course, in exchange for their signing a comprehensive release of legal claims arising from the employment relationship. Businesses do this for practical financial reasons, not out of the goodness of their hearts. They see severance agreements as cheap insurance against expensive lawsuits. 

Before agreeing to accept the severance being offered, it’s important to ask yourself whether co-workers spared the axe were more appropriate candidates for layoff. Did they have lower levels of ability? Shorter tenures with the company? A history of employment misconduct? In such instances, the layoff may constitute “pretext” under the law, meaning a mask for unlawful action. 

In addition, it’s important to ask a series of other questions. 

  • Did you report to management or a government agency any violations of law or breaches of contract in the period preceding your termination? If so, you may have legal claims under state and federal whistleblower protection laws, including the Minnesota Whistleblower Act.
  • Are you a member of a legally protected class of employees? The law prohibits discrimination on the basis of race, religion, gender, age, disability, national origin, sexual orientation and other characteristics. 
  • Did you recently seek time off for medical reasons or in conjunction with the birth or adoption of a child? The law provides certain protections for such individuals.
  • Were you about to vest in some right or benefit, such as eligibility to participate in a pension plan? If so, ERISA’s Section 510 may provide you with additional legal protections.

Employers sometimes use layoffs as a cover to get rid of workers who do not “fit in” with some preferred demographic, or who are seen as excessively expensive owing to medical costs. If you suspect that this happened to you, it is important to speak with an experienced employment law attorney before accepting any severance.

3. Am I Entitled to Written Notices or Severance Pay?

The federal Worker Adjustment Retraining Notification Act (“WARN Act”) requires employers provide employees at least 60 days advance notice of their termination if they are let go as a result of a plant closing or a “mass” layoff, meaning one affecting 50 or more workers. While advance notice is helpful in planning and seeking out alternative employment, the WARN Act provides no right to separation or severance pay.

The federal Older Worker Benefit Protection Act (“OWBPA”), by contrast, requires employers pay terminated employees 40 years old and above “consideration in addition to anything of value to which the individual is already entitled” as a condition of waiving age discrimination claims. In group terminations, the OWBPA requires employers provide all employees, not just older ones, a notice listing the ages both of all people laid off and those retained within the group of employees considered for layoff (the “decisional unit”). The OWBPA also requires employers to provide terminated employees 40 and older at least 21 days (45 days in group layoffs) in which to decide whether to accept or reject the offered severance. Through these measures, Congress intended to help employees make an informed decision as to whether age may have played a factor in their selection for termination. Failure to abide by the OWBPA’s notice and disclosure requirements will void any release of claims under the federal Age Discrimination in Employment Act (“ADEA”).

4. What About Health Insurance?

Most Americans obtain health insurance through their employment. Under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), employers must inform employees upon termination for any reason of their right to remain on the employer’s health insurance plan for a period of up to 18 months. This right may be exercised within 60 days of the end of employment. Under COBRA, the employee is responsible for paying both the employer and employee portions of the insurance premium, which in many cases will render the insurance unaffordable in comparison to policies available on the Affordable Healthcare Act Exchange. As part of a severance negotiation, employment attorneys are sometimes able to negotiate the employer’s payment of the full COBRA cost, in addition to additional compensation of claims where evidence of unlawfulness has been identified. 

Special Note on Age Discrimination

As a matter of practical experience, workers aged 40 and above tend to be laid off in greater numbers than their younger counterparts. This results in part from the fact that older, more tenured employees typically earn higher salaries than new or recent, generally younger hires. A financially struggling company may decide that to remain in business, it’s necessary to reduce the largest single expenditure for most businesses: payroll. This economic rationale may not fly where a targeted older worker has superior value based on skill and experience. This is easiest to quantify for commission-based sales employees, but may be the case for any number of other professions. 

Finally, some organizations select for termination older employees who reach upper managerial levels for potentially discriminatory reasons, including to make room for younger workers or meet diversity goals. The law protects not just women and racial minorities. Discrimination against white males, sometimes referred to as “reverse discrimination,” is equally unlawful. Proving discrimination is seldom easy, but if you feel you’ve been fired or demoted for a discriminatory reason, make sure to contact an employment lawyer. 

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

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

Watch Charles’ interview on CBS News Minnesota’s Good Question segment: “What are your rights if you’re laid off?”

By Rocket55DevAdmin |

GettyImages-655913700-scaledA shocking, but all too familiar, pattern has emerged in corporate America as businesses have responded to the Covid-19 pandemic.  Like never before, 50+ year olds in executive positions are being ousted from their jobs.  Another spike in an epidemic decades long.  So what’s going on?

It appears that the time has come for a major reshuffling or readjustment within the leadership ranks of U.S. Fortune 500 companies.  Baby Boomers and Gen Xers (ages 50-75) are being replaced by substantially younger, lower paid employees through forced retirements, RIFs, and reorganizations.  The new mantra of the day seems to be: out with the old, in with the new.  New blood, new ideas, new direction—it’s where its at.  Forget loyalty or years of successful performance—it appears to be of no moment.

The reality is that employers think Baby Boomers and Gen Xers are costing them too much money—pure and simple—including handsome pay packages (high base salaries, stock options, restricted stock awards, short and long term incentives, substantial bonuses, and the like) that often reach well into the six figures. As more senior employees, many of these executives also benefit from very generous pension plans that have grown over their 20-30-year careers.  So, from a business perspective, it becomes quite evident who best to eliminate when the corporation sets out to cut costs.

The modus operandi most commonly employed by corporations to rid themselves of 50+ leaders is what’s called a Reduction in Force (RIF) or a Reorganization (Reorg)—both mechanisms typically involve the elimination of people through elimination of their positions.  Under the law, the decisional process for making these employment decisions must be based upon objective criteria or factors that are neutral.  An employee’s protected status, like age, cannot play any role in the process.  However, it almost always does.

As an example, let’s say Acme Company, a 5,000 employee manufacturing facility, is seeking to reduce labor costs in order to increase profit and shareholder return.   Upon review of its workforce, Acme determines it is paying its director-level employees substantially when considering total compensation.  Specifically, it is paying employees in this job classification $125,000 per year over market.  It is determined that the reason for this is because the average age of an Acme Company Director is 58 years old, with an average seniority of 25 years with the company.  There are 20 Directors at Acme.   Acme would not be able to terminate these people without the risk of an age discrimination lawsuit unless it was able to replace them with employees roughly the same age.  This is not a likely scenario because it would require paying the replacements the same as the replaced Directors.  This reality would defeat the entire labor reduction cost objective.  So, what to do?

Acme may choose to simply eliminate the Director position altogether and terminate all employees who hold those positions.  By elimination of the position, Acme is able remove the age of the replacements as a consideration.  Or, instead, Acme can simply create supposedly “new” positions that have no incumbents.  Of course, the “new” positions are not new at all, but are rather the same job with slight cosmetic differences (e.g., a new job title or minor change in job duties).  Acme calls this a “restructure” or “reorganization,” and believes it can get away with filling the position with anyone it wants—including much younger employees, to whom it will pay a lot less money.  Problem solved—or is it?

Actually, Acme’s problems have likely just begun.  State and federal laws prohibit using any protected status, like age,  in making any employment decisions—whether promotion, pay, or termination.  The lawyers at Halunen Law have seen it all.  We have successfully challenged virtually every form of illegal discrimination and retaliation in the workplace across most industries.

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

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

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