It is a very, very challenging market for employees right now. I cannot identify a single client or employer who I've heard report that they are fully staffed with good employees. Keeping mediocre help can be costly and terminating employees, even while short-staffed, may still be in your business's best interests. Here's a primer on how to avoid employee reprisal claims.
To prevail on a disability discrimination claim, the ex-employee must prove both that they have a “disability” as defined by the Minnesota Human Rights Act and there was employment
discrimination based on the disability. Discriminatory intent can be shown either by “direct evidence” of discrimination or by evidence that satisfies this test: the plaintiff belongs to a protected class; (2) the plaintiff applied and was qualified for a job; (3) despite the plaintiff’s qualification, the employer dismissed the plaintiff; and
(4) after the plaintiff’s dismissal, the position remained available or the employer gave it to someone else with the plaintiff’s qualifications.
If the ex-employee proves each prong of that test, the Employer then can defeat the claim by proving it had a legitimate and nondiscriminatory reason for the adverse employment action.
As for reprisal, it is a bit different in that an adverse action is taken against an employee, current or former, based upon the employee raising issued related to the MHRA. Adverse action can include, intimidation, retaliation, or harassment. Each of those comes in various forms under Minnesota law. To prevail on the reprisal claim, the employee must prove: (1) statutorily- protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two things. The employer can defeat this by having evidence of legitimate reasons for the adverse actions to the employee. While timing is observed between the alleged protected action and the reprisal, it is not dispositive that the employer did anything wrong.
Keep these factors in mind as you contemplate your actions with employees. You cannot stop a lawsuit, save for keeping the employee and paying them more realistically, but you can prepare your defense now.
