1. Christopher Jozwiak Baillon Thome Jozwiak & Wanta LLP Penelope Phillips February 19, 2016 Termination & Retaliation 1

2. Documentation  There are several benefits to documenting significant events in an employee’s work history, including:  Written records make up for imperfect human memories  Documentary evidence is often given greater weight than individual recollections  For example, proof that a warning was given, or proof that something was or was not said  Documentation may establish like treatment of other employees, which is crucial in discrimination claims 2

3. Tips for Effective Documentation  Prepare it at or shortly after the incident because the facts will be more fresh in the preparer’s mind.  Must be accurate and comprehensive  Prepare documentation with the understanding that it could become an exhibit in court  Avoid suggestive or improper language  Key characteristics to include:  What happened  Why it is wrong  Impact on the facility  What should have been done  Response to future occurrences; and  Employee response, if any 3

4. Employment & Termination in Minnesota  Minnesota recognizes the “employment at-will” doctrine, which means that an employee can be fired for any time, for any reason, or for no reason at all.  But, there are certain exceptions to this general rule. The following are a few:  Discrimination: as we discussed last month, it’s unlawful for an employer to terminate an employee based on certain protected characteristics  Retaliation: today!  Breach of contract or promissory estoppel: today! 4

5. Retaliation Under the Minnesota Whistleblower Act  In Minnesota, it is illegal for an employer to terminate, discipline, threaten, or penalize an employee because that employee:  Reports a violation, suspected violation, or planned violation of any federal or state law or rule adopted pursuant to law; or  Refuses an employer’s order to perform an action the employee has an objective basis to believe violates any state or federal law or rule or regulation adopted pursuant to law AND informs the employer that the order is being refused for that reason.  Employee = a person who performs services for hire in Minnesota. Employee does not include an independent contractor. 5

6. Reprisal in Violation of the Minnesota Human Rights Act  In Minnesota, it is also illegal for an employer to refuse to hire, terminate, demote, transfer, harass, or otherwise discriminate against an employee because that employee makes a report of discrimination or harassment on the job, or assisted with an employment discrimination investigation or lawsuit.  Employee = an individual who is employed by an employer and who resides or works in this state. 6

7. Contract and Quasi-Contract Claims  Breach of Contract  There was a valid contract between two parties about the term or type of employment, compensation, or other conditions of the job; and  One party failed to perform or otherwise breached the contract  Promissory Estoppel  Employer made definite promises about the term or type of employment, compensation, or other conditions of the job;  Individual relied on those promises to his or her detriment; and  Injustice would result if the promises are not upheld 7

8. Termination Best Practices  If possible, warn employee of behavior or performance problems before moving to termination  Employee is less likely to be surprised and feel angry or mistreated.  Avoid providing a written reason for termination unless requested by the employee  Minnesota law requires employer to provide written reason for termination when requested by a terminated employee within 15 days of the termination. Employer has 10 days to provide.  If a reason for termination is provided, avoid later changing that reason.  Document the termination meeting 8

9.  Provide the employee with his or her last paycheck immediately  If employee quits, final pay is due no later than within 20 days of the separation from employment.  Don’t take deductions from a final paycheck unless authorized by employee  Employer must comply with an employee’s (or former employee’s) request to review his/her personnel record within seven days if the record is located in Minnesota or within 14 days if it is located outside of the state.  Employee does not include an independent contractor  State law defines personnel record 9 Termination Best Practices, cont.

10. Questions? 10