Employment Discrimination and Retaliation: Joni Thome and Frances Baillon Discuss the Basics

Joni Thome and Frances Baillon were guests on The Legal Journal radio program on November 17, 2012 to answer questions regarding employment discrimination and retaliation for opposing employment discrimination. The show covered topics such as race discrimination, age discrimination, and gender discrimination. Joni Thome and Frances Baillon also discussed how an employee can respond to discrimination or harassment and what to do if you think your employer is discriminating against you.

An audio file of the program is available at the bottom of this post.

A transcription of the show is below:

Announcer:    Welcome to this week’s edition of The Legal Journal.  Now, here’s your host, Ross Brendel.

Ross:              Good Saturday morning!  Welcome to The Legal Journal on Business1570.  I am Ross Brendel, joined in studio this morning by Frances Baillon and Joni Thome with Wanta Thome Jozwiak & Wanta, and if I did mess that up, I’m sure they will correct me right off the bat, it’s good to see you.  Thanks for coming in.

Joni:                Thank you.  You did say each of our names just as we do.  Thank you.

Ross:              We’re off to a very good start.  Thank you very much.  It’s good to see you guys on a Saturday morning.  This is The Legal Journal on Business1570 heard each Saturday morning at 9 o’clock.  You can always listen online as well at business1570.com.  Today we are discussing Employment Law.  Before we get in to that, if one of you guys wants to just talk a little bit about Wanta Thome Jozwiak & Wanta, just what you do and then we will hop in to the topic at hand today.  So I will let one of you just talk just a little bit about the firm if you don’t mind.

Joni:                Well we’re a medium-sized firm I guess or small-sized firm and most people would say.  We have six attorneys, and very talented staff of paralegals and legal systems that work with us.  Our primary areas of focus in our practice are Employment Law, meaning that we represent employees.  We represent only employees in situations where they have felt wronged in some way by their employers, discriminated against, retaliated against, that sort of thing.  The other part of our practice is in consumer protection where we represent individuals who have been victim to things relating to consumer fraud.

Ross:              What’s the best way, I know there’s a website, correct?  Is the best way to learn more about you guys to visit the website?

Joni:                That is a good place to learn all about each of the attorneys and the areas of practice and the various forms of discrimination and retaliation that we address, that’s baillonthome.com.

Ross:              Awesome!  Let’s get right to the topic at hand.  I mentioned we’ll be discussing Employment Law.  Let’s start off with something as simple as a wrongful discharge case.  For our listeners if they haven’t heard about it, let’s just talk about what is a wrongful discharge.  I’ll let either one of you address that or maybe both of you if you want to talk about it.

Joni:                Well I’ll just keep on talking for a minute or so here.  Frances I’m sure will pipe in.

Ross:              She’ll cut you off when she thinks she needs to.

Frances:         Yeah, I’ll speak up.

Joni:                That’s the way we work together and it works very well.  The term wrongful discharge is a term that many people have heard of and talked about.  When people are feeling wronged at work, or when they are terminated for reasons that they believe are discriminatory, retaliatory, that sort of thing.  They think of it as wrongful thus the term wrongful termination.  Really there’s no–under state and federal law in Minnesota, there’s no specific statute or common law claim for just wrongful termination.  When a person has been wrongfully terminated it’s typically, well it needs to be related to some protected activity or some characteristic about them that is protected under the law.

Ross:              With that then I would imagine things like discrimination come into play with employment law and wrongful discharge.  So what is a common form?  What is the most common form of discrimination currently that maybe you guys work with and maybe that you see and deal with?

Frances:         I can speak to that.  I guess what I would just piggyback here on what Joni was talking about wrongful discharge is, if people can think about it, there’s a difference between something being wrong and illegal.  We look at what is an illegal employment practice.  That would include discrimination and retaliation, and harassment.  I think for us, recently the most common forms of discrimination that we’re seeing and I’m sure people can imagine with a growing baby boomer generation, is age and disability claims.  Those are fairly common and we would say unfortunately, we see somewhat of a resurgence of sex harassment.

Ross:              We’ll get into those as the show goes on.  Those are issues we’ve talked about in the past and it’s very, very interesting.  Again, we are joined in studio this morning by Frances Baillon and Joni Thome there with BaillonThome Jozwiak & Wanta.  Learn more at ballionthome.com.  That’s B-A-I-L-L-O-N-T-H-O-M-E .com.  This is The Legal Journal on Business 1570.  If you have a question, maybe you feel like something that we’re going to talk about today, or maybe something that you’ve already heard might apply to you, as always you could call 651-289-4477, that’s 651-289-4477.  Bill Ruben is here today, he’ll also field your text questions or comments if you have them, that’s 651-243-0391, 651-243-0391.

Let’s back up just a little bit very, very briefly then will come back to this, because I think this is very important for the listeners.  If something like this does happened to them or they feel like something has happened, what’s the first step that they need to take?  Is it something as simple as picking up the phone and calling your law office?  Is that the first step they need to take or there are other things that they need to do even before that?

Joni:                Well it actually depends on the employee and the sophistication of the company in which they work and perhaps, even the employee themselves, but we do field five to 10 calls a day.

Ross:              Really it’s much?  Wow!

Joni:                It is that much.  It is kind of stunning isn’t it?  Sometimes I wonder how many employers are there in the world.

Ross:              Are we hearing from all of them?

Joni:                No, we’re not.  We do hear from some folks who work for larger corporations based in Minnesota over and over again.  Yes, it’s a good idea and many people do call our office while they’re still working in a situation where they’re feeling like something has gone wrong.  We are able to talk with people about what their situation is at work.  All of our conversations with folks are confidential and we don’t take any action, obviously, on behalf of anybody unless they become a client of ours.  It’s a good first step to make a call and to learn what your rights are in any situation that you’re thinking is going wrong in the workplace.

Ross:              That kind of goes back to Frances’ point I believe that she said we have to decide if something illegal is taking place.  Just because you feel like you’ve been wronged doesn’t technically mean it’s illegal.  I imagine that’s a lot of what you guys start with is that maybe one the first things you look at and say, “Okay, maybe it’s wrong but it’s not illegal.”  That might be the first thing that you guys kind of look at.

Frances:         Yes, a lot of times a lot of wrong things happen in the workplace.  The difference or distinction being whether or not it’s illegal and what rights that person has that should be protected.  What we try to tell people who call in when they’re still there and maybe something is going on, is we try to let them know what their rights are.  At the end of the day usually, the employee knows their workplace the best, their personal situation the best.  At least we try to help them make a good decision.

Ross:              The next question I want to bring up is a very good question because I think it’s one that I think applies to a lot of people, or at least it’s something to keep in the back of your head if something like this ever were to happen to you or maybe somebody that you work with.  Can an employer treat an employee differently after they report or complain about discrimination?  I think I know the answer, but it’s probably not necessary even an easy answer.  So again, can an employer treat an employee differently after they report or complain about discrimination?

Frances:         Well the typical lawyer answer I’ll say, it depends.  The reason I say it depends is because if you’re complaining or reporting a type of discrimination that is illegal, and you’re treated differently, then no that’s probably not going to be okay.  Your rights have been violated.  That’s the key distinction though is that if you’re reporting or complaining a type or form of discrimination that is illegal.  That would be if you’re thinking you’re being treated differently because of your age or disability, or because of your race or gender, sexual orientation, categories like that are protected.  If you go in and you’re a Viking’s fan and you go in and say you’re being treated differently by your packer, coworkers, probably not going to be protected.

Ross:              I want to talk about specific types of discrimination, retaliation.  We kind of teased it a little bit right there.  Again, this is The Legal Journal on Business1570.  I’m joined in studio this morning by Frances Baillon and Joni Thome there, with Wanta Thome Jozwiak & Wanta.  More on line about them at baillonthome.com, that’s B-A-I-L-L–O-N-T-H-O-M-E .com.  Can an employer discriminate against an employee because of the actions, beliefs of a spouse or former spouse?  That’s an interesting one.  Let’s talk about that if you don’t mind.  I’ll let either one of you hop in and take that question, or maybe you both want to hop in and take that question.

Joni:                Well I can start.  Between us, Frances is more the expert on this topic.  It can happen in situations of course where spouses work at the same workplace.  Where one spouse engages in some protected activity.  When we talk about protected activity we’re talking about making a complaint discrimination or making a complaint of retaliation or asserting the rights under wage and hour laws, that sort of things.  So it does happen in that context and it can happen between people who are no longer married, but were married at some point in time.  Employers can have policies in their companies that say, “We’re not going to have people who are married to each other maybe even work at the same company.”  Or “We’re not going to have spouses supervise each other.”  So that’s a distinction that comes with the law about how retaliation and discrimination can happen.  Making that rule isn’t discriminatory.

Ross:              A lot of that too is kind of pre-setup.  The employee would probably know that right from the get go in most cases with the employer, correct?

Joni:                Well, sometimes it gets complicated when people meet at work.

Ross:              Sure, which does happen.

Joni:                It does happen.  We spend a lot of time at work.  Frances speaks much better to the legal claims that people have had in situations.

Ross:              Is there anything that Joni missed there that you want to add to Frances?

Frances:         No, I don’t think so.  I mean it’s a more common phenomenon I think than people would realize or think.

Ross:              Well what’s interesting is when you think of discrimination you tend to think of maybe just one or two types.  Doing this show and talking to a lot of people, you realize there’s a lot more types of discrimination that actually can happen and do happen.  Which is why I think it’s so valuable when folks like yourself come in the studio.  Because I think you’re making people alert to situations and maybe some people have gone through these situations and didn’t even know that anything was illegal about it.  So I think it’s very beneficial when people like yourself come in.  Again, joining us this morning Frances Baillon and Joni Thome there, with Wanta Thome Jozwiak & Wanta.  Jozwiak I want to correct myself.  Baillonthome.com.  How about this?  Okay you want to hop in.

Joni:                Well I just want to say this because you just said something that made me think about the folks that call our office.  It happens–people are working, they’re not always thinking about why is this thing happening to me?  How am I different from that person over there who just did the same thing?  People don’t go into it looking for the ways in which they’re discriminated or signs of discrimination, retaliation.  So that is another benefit of talking with an attorney when you think something is not right, because in our practice we talk to a lot of people and we know a lot about different types of workplaces.  Sometimes we can hear the discrimination or retaliation in the stories that people tell.  Sometimes we have to talk to them and press them for the facts that identify what the reasons behind the differential treatment is because they’re just not thinking about it.

Ross:              I’m going to make a loose tie in here.  It may not be the best tie in ever.  It’s almost like this thing about a doctor or mechanic so to speak.  They can pick out things that they can tell are wrong, that since you deal with it on an everyday basis you become blind to it.  By seeing a doctor or going to a mechanic, you are able to fix some things or fix some problems that you didn’t know were there, which goes to your point.  If you even think that something could be wrong, it certainly would do you good by maybe picking up the phone or going to the website to learn a little more about you or anybody just to get more information on this.  I imagine that that’s something that you guys would probably endorse by saying, “Hey, pick up the phone and call.  It can’t hurt to talk to somebody.”

Joni:                Yeah we’re in the business to educate and keep people in jobs.

Ross:              And help people.

Joni:                Help people who are in situations where they lose their jobs or when workplaces are just so intolerable that they can barely stand it.

Ross:              I feel like this next question is going to have a lot of content to it.  What if a minority friend tells you that they think their employer treats them differently.  They don’t believe that they can prove they’re being discriminated on the basis of race maybe, national origin.  How does one prove that type of discrimination?  Because I imagine that’s a lot of which you guys need to do is you can’t just say that something is happening, there needs to be proof.  So how would somebody prove that something like that is happening?

Frances:         Sure, well I can speak to the issue of race discrimination and how might one go about proving that.  I think first off, we usually want to know from people what comments have been made to you.  A lot of times, comments are made to people, some are explicit, and some are more subtle.  We always ask about comments that have been made, either to you or in your presence.  We want to know who’s made those comments, is it a coworker, is it a supervisor.  Because if that person’s terminated, it is important to know if the decision maker was someone who was making these statements that could construed as discriminatory.

We also want to know how you’ve been treated compared to other people who are not part of your protected class.  So if it’s race or people outside your race category being treated better, even though they may have made the same mistake or done the same thing you did, but you’re treated more harshly than that other person.

Ross:              So things like maybe are they getting bonus perks, whether it be an extra vacation day that you didn’t get, maybe did they leave early, did they get a raise, things like that.  Are those things that you’re looking for is kind of a comparison?

Frances:         Yeah and if you came in late.  Boy your boss is just all over you because you’re late, but someone else comes in who’s not part of your protected class, they come in late and they get a free pass.

Ross:              It’s just kind of swept under the rug.  So those are things that you’re looking for?

Frances:         Yes.

Ross:              This is The Legal Journal on Business1570.  The phone number if you have a question or comment, 651-289-4477 or the text line 651-243-0391.  Again, joined in studio this morning by Frances Baillon and Joni Thome there, with Wanta Thome Jozwiak and Wanta helping us out this morning here on The Legal Journal on Business1570.  Let’s talk about this because this comes up since I’ve even been at this location for over a couple of years now.  This has happened a few times.  What is an employer’s obligation with respect to a pregnant employee when somebody is pregnant, maybe as far as even things like vacation time or allowing them to get to doctor’s appointments?  Let’s talk about that in general if one of you can speak to that.

Joni:                Well there are several laws that protect women who are pregnant and they are applicable in workplaces in part, according to the size of the employer.  So for instance a company of three may not have the same obligations to an employee who’s pregnant.

Ross:              It’s not a one size fits all rule and regulation?

Joni:                It’s not.  You know really, barely any of the regulations.  Yes, but that doesn’t mean that smaller employers can engage in best practices and be responsible and respectful to even their very small groups of employees.  There are several laws, as I said, that protect women who are pregnant and there were laws that protect women who are pregnant at different times or different circumstances of pregnancy.  So you mentioned, so if a woman needs to go off to doctor appointments, typically let’s just say, in normal pregnancy, people are able to just take their sick time and get to their appointments.  It becomes a problem though, when an employer–sometimes employers may mandate, “I understand you have to get to your doctor but you need to do it during your off hours.”  People who work eight to five, there really aren’t a lot of off hours.

Ross:              Not a lot of time to get to their doctor.

Joni:                Right, and then it starts looking like they may be letting the person who has a different kind of health condition go off to the doctor and use their sick time when they need to.  So that becomes a problem when that can start looking like discrimination in the basis of pregnancy.  There’s the Parental Leave Act that’s specific to Minnesota.  That applies to employers of, oh boy, I might get the number of employees, but more of the …

Ross:              That’s why it’s important to call you, [inaudible 0:20:12] call, right?

Speaker 2:     It’s more than 20 employees.  The Minnesota Leave Act, I mean it’s there to permit people who are pregnant to go and get the health care they need for the duration of the pregnancy.  Our experience is that employers are usually pretty good about that.  The time when things go badly are when for instance, we’ve had some cases where the pregnancy isn’t something that the employer feels they want to have visible to their customers.  We’ve had cases like that.  Also cases like when pregnancy gets to a point where a woman might need to have some accommodation.  Now we’re talking about disability laws where for instance, a woman might have a lifting restriction or they might need to get up and move around during their work day.  Or they may need to have more doctor appointments because of some complication from pregnancy.  Employers are obligated under Minnesota Human Rights Act and under the ADA, the Americans with Disabilities Act to accommodate those needs that people have during pregnancy.

Ross:              In the past on this show we’ve discussed a lot about the Family and Medical Leave Act and consequences of it and just exactly what it is.  My question is two-part.  First off, what is that?  If we can recap again what that is.  Is that something that pregnancy falls under or would that be different?  It’s a two-part question if you guys don’t mind addressing that.  The first part I think might be the most important part, just what is the Family and Medical Leave Act, just a little bit of background on that.

Frances:         Sure, the Family Medical Leave Act is a federal law that provides employees with 12 weeks unpaid leave that can be used in a 12-month period.  It applies to employers who have 50 plus employees.  Those employees need to be within 75 miles of each other.  There’re some little extra requirements there.  It provides leave for employees who are taking care of a new born, those employees with a serious medical condition or a family member with a serious medical condition.  It also provides leave for the care of a service member, so someone who either needs care after having come back.  The family also provides leave for that employee to spend time with a family member or next of kin who will be going out on active duty.  There are a lot more specifics about that but that’s a general overview of what it provides.

Ross:              It is important to note very quickly that it doesn’t just apply to maybe if something happens to the person who’s employed.  It can be a family member, correct?

Joni:                Yes.  Just on the point of active service members.  The Family Medical Leave Act provides up to 26 weeks of time off.  The other part of the Leave Act is that when you take this time away, whether it’s for your own or someone, a family member’s serious health condition.  At the end of that leave the law provides that you need to be returned to the job you had at the time you went on leave.

Ross:              Without penalty.

Joni:                Right.  There’s a guarantee at the end of the leave when it’s within those 12 or 26-week period.

Ross:              Very, very quickly, does pregnancy fall under that or is that separate?

Frances:         Well it can, I guess if it would be–if there’s some part of it that’s causing a serious medical condition.  The important piece too is that the act is providing protections against retaliation or interference by an employer for exercising your right to take leave under the act.

Ross:              Got you, got you.  Can an employer discriminate in and we’ll probably start with this, but we might have to come back so we have a break coming up in just a few minutes.  Can an employer discriminate against or treat an employee differently after an employee suffers an injury at work?  That’s kind of along the lines of what we just talked about, but it is a little bit different.  Let’s talk about that.  I’ll let either one of you respond or once again, both of you can hop in.  The knowledge between you two by the way is astounding how much you guys know.  It’s great to have you this morning.  I guess I’ll let either one of you respond.

Frances:         I’m sometimes astounded by how much I don’t know.  No, you can’t be treated differently.  If you’ve suffered an injury at work, at least in Minnesota there’s the worker’s compensation act.  That’s a law that among other things provides protections against retaliation for exercising your rights to receive benefits for having suffered a workplace injury.  That’s one way which you can’t be treated differently.  So if you suffer an injury at work and now the employer doesn’t want to be stuck with having to have an injured worker, make accommodations to you because you have a lifting restriction for a while.  They start treating you differently, you’re not getting the same kind of jobs then maybe you get fired.  That would not be legal under the statute.

Joni:                People are generally familiar with the Workers’ Comp Act.  People know that if you get hurt at work, you need to report that injury and then the employer is going to have some responsibility under their insurance, Workers’ Comp Insurance to cover that injury.  The retaliation piece is a civil action.  It doesn’t fall within that same–Workers’ Comp Court is a court all of its own.

Ross:              This is The Legal Journal on Business1570.  Good Saturday morning to you.  Again, you can always listen online at business1570.com.  This morning in studio we’re joined by Frances Baillon and Joni Thome there, with Wanta Thome Jozwiak and Wanta, more online at baillonthome.com.  That is B-A-I-L-L-O-N-T-H-O-M-E .com.  I’m getting choked up this morning.  Ladies, if you don’t mind, let’s talk about very, very quickly before we go to break.  If we can just kind of reset, Wanta Thome Jozwiak and Wanta who you guys are, who you work with and who you might represent in cases of employment law when people feel like they’ve had some these discriminations or that they’ve maybe been wronged in these areas.

Joni:                We represent only employees who have been wronged in these situations.  They’re people who have suffered some kind of discrimination, protected statuses, people who have made reports of law violations within their workplaces.  Generally, we’re available to talk with people about things that just seem strange and wrong and orthodox.

Ross:              People can learn more online at baillonthome.com.  We’ll take a break.  We’ll come back for our second segment of the show with Frances Baillon and Joni Thome right here on Business 1570.  It’s The Legal Journal on your Saturday morning back in just a few moments.

(Music Plays)

Ross:              Welcome back to The Legal Journal on Business 1570.  I’m your host Ross Brendel joined this morning by Frances Baillon and Joni thome with Wanta Thome Jozwiak & Wanta.  I mentioned it before the break.  You can learn more online at baillonthome.com.  That is B-A-I-L-L-O-N-T-H-O-M-E .com.  We are discussing Employment Law, things like discrimination, wrongful termination.  We’re talking about a lot of that this morning in studio.  I want to hop right back into the topics, into the questions.  There’s so much to get to.  If you want to add something, 651-289-4477 that’s the number to call or you can text 651-243-0391.

Let’s talk about hostile work environments.  I imagine you guys deal with that an awful lot too.  I know you talked about getting anywhere between five and 10 calls a day when it comes to discrimination and employees feeling like they’ve been discriminated against.  Let’s talk about hostile work environments.  What does that mean under the law?  Again, I sense there’s probably a difference.  You might think you work in a hostile work environment but maybe that doesn’t by law technically mean that you do, so let’s talk about that if you don’t mind.

Frances:         Sure, I can talk about that.  A hostile work environment has to be one that is based on some protected characteristic or class, so again, some of the ones we’ve been talking about, race, sex, national …

Ross:              Nationality.

Frances:         Right.  It has to be conduct that is unwelcomed and it has to be something that harassment or conduct that affects the terms or conditions of somebody’s employment.  What that essentially means is that it can’t just be infrequent comments here or there.  It’s got to be something that the law calls severe pervasive.  Another way of describing that is courts look at how frequent is the harassment?  How severe is it?  Is it physically threatening?  Is it humiliating?  Is it embarrassing?  Does it interfere with the person’s ability to perform their job?

                        It is a pretty high standard to have a case or a claim for a hospital environment, but it is prevalent in the workplace.  Unfortunately there’s a lot of hostility going on that isn’t protected, but there is also a lot going on that is.

Ross:              Earlier in the show I asked you guys about types of discrimination that you’re seeing.  I think you answered with–I know you see them all, but the ones you’re working with that you see the most as of late are maybe age discrimination, and sexual harassment.  We spent a little bit of time on age discrimination.  I’d like to spend a little bit more time on sexual harassment because I believe that this is, of all the topics that we talk about on this radio show, I feel like this is one that almost everybody in some way, shape or form, has maybe dealt with this.  Whether it’s been them or somebody that they’ve worked with, so I feel that this topic–not that the other topics aren’t very important, but I feel like this one ranks right up there in importance.  Let’s just talk about what constitutes unlawful sexual harassment.  Again, I know as Frances just talked about, I imagine that there’s not a yes or no answer or one line of where you have to meet.  I’m sure that this is a little bit of a tricky issue, but I’m sure there are some things that you can stand out and you can pick out right away and say, “That is sexual harassment.”  Maybe we should even just go with the legal lawful definition.

Frances:         Sure, I can speak to that and I know Joni will have some things to add.  In terms of what’s considered sexual harassment, we have a statute here, the Minnesota Human Rights Act.  That defines sexual harassment to include unwelcomed sexual advances, requests for sexual favors, sexually motivated contact or other verbal or physical conduct or communication of a sexual nature.  So jokes, graffiti, comments that are made, e-mail, lots of e-mail that people will send what they consider to be a joke or a comic strip or something like that that they think is funny that is fully and totally inappropriate and in some cases harassing.  That’s at least how the law looks at what is considered sexual harassment.

                        It can also include things that maybe aren’t overtly sexual, but if they are included in a pattern or practice of behavior that is sexual, that also could be considered harassment.

Ross:              Joni, anything to add to that?  I sense the one from you guys’ standpoint, if something is going on via e-mail, that has to be one of the easier ones, I mean if anything is easy, that has to be one that is easier for you guys to prove.  Simply because there’s a chain of an e-mail from one person or another with basically the evidence would almost be right there.  I imagine that would be one that might be–because we always talk about proof.  That might be a little easier to prove.  On the topic of sexual harassment do you have anything to add to what Frances had to say?

Joni:                Sure.  I’ve practiced law long enough to have practice during a time where we didn’t have e-mail.  You’re right, I mean, documented evidence is good evidence of what is taking place obviously.  It’s not just e-mail that becomes documented evidence in cases like these.  We’ve had plenty of cases where employees take pictures of things, like Frances mentioned, graffiti drawings on lockers, for instance in an employee locker room.  Photos of typical calendar that’s offensive that’s in the break room or comments that are written on break room whiteboards and that sort of thing.

                        Having practiced for a number of years, it is still stunning to me the amount of sexual sort of what some might call banter that takes place in a workplace.  There are plenty of movies and one movie, sort of recent, North Country was a movie that depicted the story of some women who worked up at Eveleth Mines in Northern Minnesota.  People go to these movies, they watch TV and they know that this type of conduct in a workplace could be something that gets them in trouble.  Whether they’re the coworker and when it’s coworker to coworker sexual harassment it means something a little different than when it’s a supervisor or a manager who is actually engaging in the harassing conduct.  There’s no end to how creative, if you will, people can be with talking about sexual subjects in the workplace and in fact molding body parts out of the things that they work with on a daily basis.  It’s extraordinary.

Ross:              You’re basically saying, you two have seen it all.

Joni:                I don’t know that we’ve seen it all.  Certainly it’s …

Frances:         A lot.

Ross:              Maybe the better way to put it is nothing surprises either of you two.

Joni:                No, not really surprise much anymore.  In our work, the people that come to us are people who have been wronged.  People who are victims of sexual harassment are typically people who–after the victimization happens, I mean all forms of discrimination are violative of a person’s core.  Sexual harassment has–I mean my experience, I think it has a different kind of feeling with people who have experienced it especially those who experienced it to a more extreme degree.

Ross:              Frances Baillon and Joni Thome join us this morning on The Legal Journal on Business1570 with Wanta Thome Jozwiak & Wanta.  You can learn more at baillonthome.com.  That is B-A-I-L-L-O-N-T-H-O-M-E .com.  If that’s familiar it’s because we had Shawn Wanta in studio a few weeks back.  He helped us out.  What I loved about Shawn and what I love about you two is I can sense the conviction in your voices when you guys talk about this stuff.  Maybe it’s important just to ask you two why you decided to–I don’t even like calling things a career path, but why you chose to maybe so to speak, make it a mission in life.  I imagine it’s rewarding, but at the same time, you guys are doing really good work and you’re helping people.  If you don’t mind, maybe we can just talk about how each one of you decided that this is what you wanted to focus on, because I think that is almost as equally as important as anything we’ll talk about on the show.  Silence.

Joni:                No.  I mean because for me, I mean there’s a lot that went into it, a lot of my personal history that got me to the place where I am now and where I started out 20 years ago when I started practicing law.  I was raised in the ‘60s.  I was a kid in the ‘60s and a teenager in the ‘70s.  There was a heck of a lot of talk about civil rights that was happening during that time period.  Not that there’s not as much now, I mean it’s different groups of people.  In the ‘60s and ‘70s …

Ross:              Different generations determine different things.

Joni:                Right, it was women and it was race.  Today we’re talking about lesbian gay trangender and bisexual people and the kinds of things that happen to them in workplaces.  I think it probably started for me as a kid.  I was raised in a family that wasn’t okay to treat somebody differently or have some sort of judgment about somebody because of who they are.  For me it started there.

Ross:              That’s kind of followed through to today.

Joni:                Yeah, you’re right.  I feel very strongly about it.

Ross:              Frances?

Frances:         Yeah, I probably would say that it started early.  I grew up in a pretty large family.  There were six kids and so debate and discussion was actually something valued.  My parents really did a good job of getting that out of us.  Fairness obviously between six of us was important too.  It’s always just been something that having the opportunity and the honor to represent an individual when they have been wronged, it really is that, it is a privilege.  I think you have to have passion to do this kind of work.  I can say very safely that all of us, all the attorneys and our staff really have passion for representing the people that we do.

Joni:                Just a point that Frances just made about the privilege to represent the people we do.  It’s not an easy thing.  Litigation of any sort is a pain in the butt no matter.  Lawyers like it.

Ross:              For the person I imagine it’s very difficult especially when you’re dealing with their work.  Obviously for most people it’s their livelihood, so I imagine it’s difficult.

Joni:                When you come out and sue and make the threat to sue and get things resolved before it gets to that level, it sometimes can have an impact on a person’s reputation in their particular profession.  Very few cases get any public notoriety but sometimes within a trade or a profession, it can be a very scary thing.

Ross:              We have just about 10 minutes left on today’s Legal Journal on Business 1570.  So if you don’t mind, I want to wrap up a little bit on sexual harassment but then I want to talk about things like post termination rights and the difference between employer and employee rights on the job.  I want to touch on those as much as possible.  Let’s finish with sexual harassment on this.  How far can an employer go before he or she is guilty of sexually harassing an employee?  I know we kind of touched on that.  Is it a matter of if the harasser is a supervisor or a coworker?  Can we talk about that a little bit?

Frances:         Sure, it does make a difference if it is your coworker or if it’s your supervisor who is perpetuating the sexual harassment against you.  The reason for that is a good one because your supervisor has the ability and authority to directly change the terms of your employment, your hours, how you’re treated if you come in late.

Ross:              Whether you’ll be employed or not.

Frances:         Right.  Other benefits you might get, break time or bonus or a pay increase, where you do your job, the shift you have.  They have a lot authority, a lot of power.  That makes it that much more difficult for a person who is being harassed by their supervisor to come forward.  If your supervisor is harassing you and they take some kind of, what we call tangible employment action, meaning they do something that really changes the terms of your pay, the conditions of your job, the employer can be liable.  That’s a very generic way of saying it, but because they have the ability and the authority to take those kinds of actions there’s what we call vicarious liability.  If it’s a coworker you need to probably let your employer know that it’s going on unless it’s so rampant and so widespread that the employers should have known it was going on.

Ross:              When it comes to things like harassment and discrimination, very quickly, and I know it’s probably not the best question to ask you could give a quick answer to.  What are the steps for the employee?  Can they go straight to somebody outside the building?  Are there certain steps they have to take within the building?  Do you guys even know how to respond to that?  Is there a general guideline of what they need to do?

Joni:                Yeah.  Actually I couldn’t respond pretty quickly.  If it’s the coworker to coworker type of harassment that’s happening then that employee actually does have some obligation to report that to somebody in the business, whether it’s an HR person or a manager who can actually do something.  The employer should do something to try to make that stop.  In the case of a supervisor, if there’s another–the employee doesn’t necessarily have to go beyond the supervisor, but it’s a darn good idea to try to resolve the situation inside the business if it’s at all possible.

Ross:              Let’s talk a little bit about some of the right, on the job, if you don’t mind, even something like sick leave.  Does an employer have to give their employees sick leave?  Are they required by law to do that?

Joni:                Actually that’s a more complicated question than the one that you just asked.

Ross:              I love how I get smiles out of both you when I ask that question.  I should have known that this might be a longer answer.

Joni:                I will try to be quick.  There’s no law, federal or state law that says that an employer has to provide paid sick leave.

Ross:              If they want good employees they probably should, right?

Joni:                It’s just a darn good idea, isn’t it?

Ross:              Okay, let’s talk about this too.  You mentioned things of harassment maybe even being done via e-mail and it brings up–you talked about it.  You said, obviously, believe it or not there was a time where we never used e-mail.  This comes up another point that I think is pretty interesting.  Does an employer have the right to read an employee’s e-mail?  Can they basically walk over to your computer and look at your e-mail?  Can they scan it from their desk?  Can they legally do that?

Joni:                I think as employees we should expect that, yes, that’s–but it’s a tentative yes because there haven’t been a ton of cases on this.  There’s not a statute that talks about whether an employer can use or can view e-mail.  Generally, the e-mail systems and the computers that people are using are the property of the employer.

Ross:              Which gives them the right to go through it.

Joni:                It gives them the right to look at it.  Again, a better practice is to–if an employer is looking at an employee’s e-mail, a better practice is to not so much go and look at what are obviously personal e-mails.  Unless too much personal e-mail on the job is a problem.  You don’t necessarily have to look at content to get to that issue.

Ross:              What rights does an employee have when it comes to maybe being bullied at work, if either of you can respond to that?  Maybe it’s not such a form of discrimination, maybe you just feel like you’re being–I don’t even like using the term picked on, bullied is probably the best term.  If you feel like you’re being bullied, what rights does an employee have?

Frances:         Well, it’s really a common, common problem.  I would say I must get two or three calls a week about people being …

Ross:              On this specific topic?

Frances:         About being bullied in the workplace, yes.  There isn’t a law right now specifically.  Minnesota has–there’s a draft law that was offered, I don’t know, in the last few years to try and address this issue.  There is a statute or a law that provides that employees in Minnesota have a right to a safe workplace.  If the bullying you’re experiencing is rising to the level of you’re being assaulted, you are being threatened physically.  You may have some protections.  If that’s happening you should let your employer know the same as Joni was just discussing, talk to human resources, talk to a manager.  Talk to somebody who can actually do something about it.  In order to really know if you’re going to have any kind of case or real protections it would probably be at that point would want to call a lawyer and find out.

Joni:                Just two very quick points on bullying too.  I mean obviously bullying has become–people are thinking about it now because of the attention that bullying has gotten in schools, some of the laws that protect kids from bullying within schools.  First what we looked at, and we go through the same steps.  Why are you being bullied?  What is it about you?  Is there something about you that your employer doesn’t like?  If it’s a protective status then you move to those laws.  The law that Frances mentioned gives us a right to a safe and healthy workplace, that’s OSHA.  People are pretty familiar with OSHA.  We’ve been encouraging people that if they’re feeling bullied at work, it’s persistent and threatening physically or it’s having a negative effect on mental health, then I would encourage people to start making reports saying that, “OSHA tells me I get to have a safe and healthy workplace and you’re not providing that.”

Ross:              Okay.  The voices you’re hearing this morning on the show, Frances Baillon and Joni Thome with Wanta Thome Jozwiak & Wanta, the e–the e-mail, see we’ve been talking about e-mail, now I’m saying that, the webside baillonthome.com, B-A-I-L-L-O-N-T-H-O-M-E .com.  We have about four minutes left of the show.  I want to talk about post termination rights, because sadly as we all know it does happen.  People lose their jobs.  Sometimes it’s got nothing to do with any type of discrimination.  That doesn’t mean when they’ve been let go they’re not entitled to certain rights.  Let’s talk about this because I think that this one is very interesting when I saw this.  Does an employer, are they required to tell an employee why he or she was terminated, why they were let go?  Does that employer have to provide a terminated employee with the employment file or personnel file?  Are they required to anything like that when they’re let go?  If they’re let go, I don’t want to say when.  That makes it sound like it’s definite that it will happen.

Frances:         Right.  If you’re terminated you do have a right and you can request for it in writing for the real or truth for reason for your termination.  You also have a right to your personnel file which is also best to put the request in writing.  They have a certain amount of days to provide your personnel file to you.  Yes.

Ross:              They’re legally required if you ask for it to give it to you.  You can have that.  That’s legally yours as long as you take the proper steps.

Frances:         Yes.

Ross:              Anything to add to that?  Or did we cover all that?

Joni:                Well, maybe I missed it, but did you ask whether an employee has the right to be told it was they were terminated?

Ross:              I did not ask that specifically but that’s a very good question too.  Can you just say, “Okay, why?”  Do they have to give you an answer?

Joni:                It’s the same as the personnel records.  If you ask for that reason, the truthful reason that Frances just referenced and you ask for that in writing, yes they do.  We work in an at will state.  A lot of people know that term too.  Generally, you’re going to be fired for a good reason or a bad reason, if it’s an illegal reason that’s a problem.

Ross:              Okay.  So you can be fired for any reason but whether it’s illegal or not is the real crux of the matter that we’re dealing with.

Frances:         I just wanted to pick up on that to circle back to our discussion about discrimination and any kind of form of illegal discrimination we also want to know the employer’s stated reason for why the person was fired.  Then we always ask people why do you think you were fired?  A lot of times there’s a big difference between what the employer says and what was really going on.  A lot of times we can look at–they say they fired you because the stated reason is you were late.  That employee may tell us I was late all the time, it was never a problem.  Then when I made a report of discrimination then it became a problem.

Ross:              That’s where the red flag would be to you guys.

Frances:         That’s another reason why we want to know the stated reason and then we always want to know from people what they think the real reason is.

Ross:              Let’s close with this, with the remaining time.  Let’s say somebody after listening to the show today or maybe they’ve heard this and maybe two or three weeks from now something happens to them and they say, “Well, that’s not right.  I need to talk to somebody.”  Maybe they go to baillonthome.com.  They get the phone number and they call you, again that website, B-A-I-L-L-O-N-T-H-O-M-E .com.  What’s the process?  Let’s talk about that again very quickly.  If somebody picks up the phone and calls you, what is step one?  What do you guys do?  Where do you start?

Joni:                Anybody who calls our office talks with one of our attorneys.  There’re a few things that I ask right in the first two minutes.  People typically just want to go into their story and say this happened.  We want to know where do you work, how long did you work there, what was your job and then what went wrong.  We generally just let people talk, but then we ask questions to try to get at the kinds of things that we’ve been talking about here today.  The question that’s asked pretty early on is what do you think the real reason is.  Then we can focus on that.  We go through a phone conference and then if the person needs to give us more information we ask for that.  Then there’s an in office visit if it seems that person would have a case or issues that need to be addressed by us.

Ross:              Well I want to thank both of you, again, Frances Baillon and Joni Thome with Wanta Thome Jozwiak & Wanta, more online at baillonthome.com.  That is B-A-I-L-L-O-N-T-H-O-M-E .com.  Frances and Joni thank you so much for coming in this Saturday morning.  I appreciate it and thanks for your help today.

Frances:         Thank you.

Joni:                Yeah, thank you.

Ross:              Again more online, baillonthome.com.  That will do it for The Legal Journal on Business 1570.  I’m Ross Brendel.  Have a great Saturday everybody.

(Music Plays)

Announcer:     You’ve been listening to The Legal Journal with Ross Brendel.  Join us every Saturday at 9 AM as the top attorneys from the Twin Cities share their legal expertise with you on The Legal Journal.