Minnesota Employment Law Firm
Trepanier MacGillis Battina P.A.
Minnesota Employment Law Frequently Asked Questions (FAQ's)
What is At-Will Employment?

In Minnesota, if an employee is hired for an indefinite period of time without a contract, an employee is generally hired "at-will." At-will employment means that both the employee and employer can terminate the employment relationship at any time, for any reason.  If an employee is hired for a definite period of time, then the employment is not at-will and an implied just cause standard applies to terminating the employee before the end of the agreed upon term.  It is important to note that an agreement to hire an employee for a definite period of time can be made in writing or verbally.

There are several exceptions to the at-will employment rule.  A common exception to at-will employment exists when the employee and employer enter into an employment agreement limiting the employer’s right to terminate the employee.  Such an employment agreement can be made verbally, but is often memorialized in writing.  A collective bargaining agreement or other union agreement can also contain a provision limiting the employer’s right to terminate the employee when “just cause” exists. 

Another exception to the at-will employment rule is when the employer forms a unilateral contract with the employee, usually through its employee handbook, that limits the employer’s ability to terminate the employee or requiring progressive discipline.  It is important to remember that not all employee handbooks create such a unilateral contract and in some cases an effective disclaimer in the handbook can prevent the creation of such a contract.

An additional exception to at-will employment occurs when the employer terminates an employee for reasons that violate the law.  Unlawful reasons include decisions based on sex, race, disability, age, retaliation and whistleblower status.  

The law also recognizes an exception to the at-will employment rule where terminating an employee violates public policy.  For example, if an employer terminates an employee for refusing to violate a law, such a termination might be a violation of public policy.  

In addition, Minnesota law recognizes that elements of promissory estoppel may give rise to an exception to the at-will employment rule.  This means that when an employer makes certain promises on which the employee relies, the employer may be limited in its ability to terminate the employee.  

Under the at-will employment doctrine, an employer can often choose to fire an employee for a good reason, a bad reason, or for no reason at all.  In the same way, an employee can quit for any reason without any explanation.  Unless the employee can show that he or she was not an at-will employee, that he or she was terminated for an unlawful reason, or because the employee has other legal arguments, the employee generally has no recourse.  The law in general does not protect an employee from a bad manager or company.

In the case where an employee brings a claim against the employer for a violation of an agreement with the employer (whether in writing or verbally) that required the employer to terminate only for a just cause, or if the employee alleges that he was terminated for an unlawful reason, the employer will be provided an opportunity to show that any employment decision it made was based on a legitimate business reason.  Legitimate business reasons for employment decisions include absenteeism, poor performance, violation of work rules, or other similar reasons.  The employer should seek the advice of an attorney in order to prepare documentation and evidence that demonstrates the presence of a legitimate business reason. 

What Should Be Included in a Job Application? 

Job applications are an essential tool for employers to learn more information about a potential employee.  An employer should make sure to review an employment application very carefully to make sure that it includes appropriate requests for information from the employee.  Appropriate information is that which is reasonably related to the job for which the applicant is applying.

While pre-printed application forms can be convenient, sometimes these forms include questions that are not legally permissible or that are not tailored to the organization’s needs.  An employer should review and revise the organization’s employment application so that it solicits relevant and meaningful job-related information.  The employer may choose to include certain disclaimers on the application form, including a statement about at-will employment.  It is important that the employer does not request information that is not job related or that might reveal an applicant’s protected status.  Questions about disabilities, marital status, military status, age, date of birth or similar questions are problematic and should be avoided by the employer.

How Should Employers Screen Job Applicants?

Sound business practice requires that employers carefully screen job applicants before hiring.  The first step in screening job applicants is to evaluate all of the information supplied by an applicant and to confirm the accuracy of the information.  Truthful employment information on potential employees is essential and, as a result, the employer should condition employment on truthful application information and make it clear that employees will be terminated if they provide false information.  The employer should also consider conditioning employment on the applicant’s willingness to accept any job assignments assigned by the employer.

Before an employer can evaluate any information supplied by an applicant, the employer must first gather the information.  There are several ways to gather information about employees.  One of the most important tools that an employer can use to gather information about an employee is the job application itself.  If the employer has prepared a thorough and comprehensive job position description that includes a clear recitation of the actual minimum qualifications for a position and the essential and marginal functions of the job, the employer will have a much better chance of receiving qualified applicants.  Once the employer receives the applications, the employer should rank the applications based on the applicant’s qualifications and how they match the requirements of the job description.

Another key tool used by employers to gather information about an employee is the interview.  During the interview process, the employer should prepare a set of standard job-related questions and use them during interviews with potential employees.  It is important that the employer train interviewers to ask appropriate job related questions during interviews.  Again, it is important that the interviews avoid questions related to the marital status, military status, disability status and the age of the applicant.  Other questions to avoid include questions about children, pregnancy, birth control, physical ailments, hospitalization, mental disease and questions related to illnesses.

In certain circumstances, employers may decide to conduct a background check on an employee.  In some cases, such background checks are required.  Background checks are appropriate where the employee’s duties are directly related, or could be influenced by, the employee’s background.  It is important that the employer be able to justify the inquiry and conduct background checks only in appropriate circumstances.  Employers should be warned, however, that background checks can be a trap for the unwary and it is recommended that employers seek the advice of counsel before deciding to conduct background investigations on employees.

Other tools employers use to gather information about potential employees include pre-employment testing, physical examinations, and drug and alcohol testing.  Pre-employment testing is permitted where the test measures only the essential job related abilities, the test is required for all applicants of the same position, and the test accurately measures the applicant’s aptitude or other relevant factors related to the job position.  Employers should be aware that the Americans with Disabilities Act (“ADA”) and the Equal Employment Opportunity Commission (“EEOC”) guidelines may affect the employer’s ability to conduct such pre-employment testing.  Therefore, it is important that the employer obtain the advice of counsel before conducting any pre-employment testing. 

An employer may also require, as a condition of hire, that the applicant submit to a pre-employment physical exam.  A pre-employment physical exam is only appropriate where the applicant has already received an offer of employment contingent on passing a physical exam and the physical examination tests only for essential job-related abilities and the physical is required of all persons conditionally offered employment for the same position.  Minnesota law and federal law differ on the scope of these pre-employment physical examinations.  In Minnesota, the physical examination can test only for essential job-related abilities.  Under the ADA, employers may perform medical examinations that are not job-related. 

Employers are permitted to require that a job applicant undergo drug and alcohol testing if the applicant has received a job offer and the same test is required of all similarly situated applicants.  In order to conduct drug and alcohol testing in Minnesota, the employer must have a written drug and alcohol testing policy containing certain information required under Minnesota statutes.  Minnesota law has several requirements that an employer must meet in order to conduct drug and alcohol testing.  For more information about drug testing laws in Minnesota, visit www.minnesotadrugtestinglaw.com.

What Should Employers Include in a Job Offer Letter? 

When it is time to make an offer of employment to a potential employee, it is good business practice to put the offer in writing.  Often, employers include the offer in a letter to the potential employee.  The job offer letter should contain the essential terms and conditions of the employment.  The letter should replace all previous discussions, negotiations and communications regarding the new position with the organization.  The offer letter should include the basic terms of the position, including:

  • Title
  • Department
  • Reporting structure
  • Duties
  • Salary or wage
  • Schedule and expected work day
  • Exempt status
  • Vacation
  • Paid holidays
  • Start date
  • Benefit information 

If the employer is going to require the employee to sign a non-compete agreement, the employer should include a statement about the non-compete agreement and include a statement that the company is making the offer of employment contingent upon the potential employee’s signature of the non-compete agreement.  Some employers also require the employee to represent that the employee is not subject to a non-compete agreement from a previous employer.  An employer should also include a statement about the employment relationship being at-will and may terminate at any time upon the election of either the employer or the employee.

Are Employers Required to Notify New Hires of Their Wage Rate in Writing? 

Minnesota law requires that when a contract of employment is created between an employer and an employee, the employer must give the employee a written and signed agreement of hire.  The agreement must clearly state the date on which the agreement was entered into, the employee’s start date, the employee’s rate of pay, the number of hours a day the employee will be expected to work, and a statement of any special responsibilities that the employee will have.  See Minn. Stat. § 181.55.  When the employee and employer do not enter into such an agreement, the burden is on the employer to establish the terms of any verbal agreement in the case of a dispute.  See Minn. Stat. § 181.56. 

Is the Employer Required to Notify New Hires of Personnel Records Act Rights? 

Under the Minnesota Personnel Records Act, employees have several rights in connection with their personnel files.  Every employee has the right to review their own personnel file once every six months while employed at an organization.  In order to review these records, the employee must submit a written request to the organization.  Once the employee has made a written request, the organization must make the records available within seven working days after receiving the request or within 14 days if the personnel records are stored out of the state.  The employee must have access to the employee’s file during normal operating hours either at the employee’s job site or at a nearby location.  The organization can require that the review take place in the presence of a representative from the organization.  Once the employee has had a chance to look at his or her personnel file, the employee can make a written request for a copy of the file.  Once the employee makes such a request, the organization must provide the employee with a copy at no charge. 

If an employee disputes specific information that is contained in his or her personnel file, the employee and employer may agree to remove or revise the disputed information.  If the employer and employee are unable to come to such an agreement, the employee is entitled to submit a written statement of no more than five pages explaining the employee’s position.  This position statement must be included in the employee’s file along with the disputed information for as long as the organization maintains the records.  An organization may not discriminate against an employee for asserting rights under the Minnesota Personnel Records Act.  See Minn. Stat. § 181.964.

In addition to providing employees with access to their personnel files, employers who have at least 20 employees must also provide a written notice to job applicants upon hire of the new employee’s rights regarding their personnel records.  Some employers choose to include this notice with a job offer letter, while others prefer to include it in a job application.  It is recommended that an employer require an employee to sign an acknowledgment form after receiving the notice.

What is an Independent Contractor? 

Determining whether an individual is an employee or an independent contractor can sometimes be a complicated analysis.  The key to figuring out whether an individual is an employee or an independent contractor is the level of control an organization has over the individual.  In analyzing this issue, one must look to several factors to determine the level of control being exerted by the employer and whether or not enough control exists to create an employer-employee relationship. 

Employers, when trying to determine whether an employer-employee relationship exists, must subjectively analyze and honestly assess the type of work being done and the circumstances of each individual case.  The factors include the following: 

(1) whether or not workers must comply with the organization’s instructions as to when, where, and how they work;

(2) the amount of training received by workers from the organization;

(3) the importance of the worker’s services to the business’s success;

(4) whether or not the worker performs services on a personal basis;

(5) whether or not the worker is in charge of hiring, supervising, and paying his or her own assistants;

(6) whether or not the worker performs work for the organization for a significant period of time or on a recurring basis;

(7) whether or not the worker has set hours of work or can set his or her own work hours;

(8) whether or not the worker is required to be available full-time or can work whenever or wherever he or she chooses;

(9) whether or not the worker is required to work at the organization’s premises or at a place designated by the employer;

(10) whether or not the employer sets the order or sequence in which a worker performs services;

(11) whether or not the worker is required to submit regular reports to the organization;

(12) whether or not the employer pays the worker by the hour, week, or month;

(13) whether or not the employer reimburses the workers for business and travel-related expenses;

(14) whether or not the employer provides the tools, materials and other equipment required to complete the job;

(15) whether or not the worker invests in the facilities and equipment used to perform services;

(16) whether or not the worker is taking the risk to make a profit or suffer a loss in providing the services;

(17) whether not the worker performs services for multiple organizations at the same time;

(18) whether or not the worker holds himself or herself out as providing services to the general public through business cards, advertisements and other promotional materials;

(19) whether or not the organization can terminate the employment of a worker rather than being limited by specific contractual terms; and

(20) whether or not the worker has the right to quit at any time without incurring liability to the organization.

What is an Employment Agreement? 

An employment contract outlines the terms and conditions of the relationship between the employer and the employee.  The employment contract can include the conditions of hiring, salary, benefits, and information on how the parties can terminate the relationship.  The employment agreement may also include a non-compete agreement.  A non-compete agreement contains a promise by the employee to refrain from certain competitive activities after the employment relationship is terminated.  For more information about drafting, interpreting and enforcing employment contracts in the State of Minnesota, visit www.minnesotaemploymentcontract.com.

Why Should Employers Adopt an Employee Handbook? 

Employee handbooks are an important tool for employers for many reasons.  Employee handbooks serve to create a sense of fairness among employees and help to avoid supervisory confusion.  While drafting an employee handbook can be an overwhelming task, it is critical to the appropriate operation of the employer’s business and can help to defend the employer against employment litigation. 

Poorly written employment policies can cause many problems for employers.  Poorly drafted policies can fail to express the employer’s expectations and disciplinary actions that will occur if these expectations are not met.  Piecemeal employment policies or revisions of a handbook can result in a disjointed, inconsistent, and ineffective set of policies for an employer. 

When an employer does not clearly express its expectations of employees, there can be an appearance of impropriety or an appearance of unfairness to the employees.  This is especially true when an employer terminates or disciplines an employee for failing to meet the employer’s expectation and there is no written employment policy to back up the employer’s expectation.  In wrongful termination litigation, a lack of written employment policies can tend to make a termination look suspicious.  An employer is much better served by articulating a clear set of written policies in a handbook.

Employers should take care to review and revise old versions of employee handbooks.  Any unclear or incomplete policies should be revised to avoid confusion by employees.  Concise policies allow an employee to comprehend and understand exactly what is being asked of them.  An antiquated or confusing policy prevents an employee from following a standard policy in a particular situation.  When no written policy exists, it is difficult for managers to apply policies in a uniform fashion.  Such confusion can cause managers to treat employees differently and can lead to discrimination litigation.  Employers should make sure that all policies are clear and up-to-date so that employees know what is expected.

Another reason that employee handbooks are so important is that a written policy lends credibility to the employer in wrongful termination claims.  Often employees who make wrongful termination claims make the claim that they were never aware of the particular policy at issue.  If the employer does not have a written policy defending against such claims, it is much more difficult to prove that such a policy existed, and that the employee was aware of the policy. 

The employee handbook should include a provision regarding at-will employment.  The handbook should also include an acknowledgment that the employee agrees to abide by the terms of the handbook’s rules and policies and agree to be employed at-will.  The employee handbook should also include provisions on harassment, equal employment opportunity, vacation, sick leave, overtime, workplace injuries and, depending on the size of the employer, leave policies as required by federal and Minnesota state law.  Employers should also include a notice of the employer’s right to revise or rescind the handbook at any time.  An employee handbook can also include a drug and alcohol policy, a policy about the employer’s trade secrets and proprietary information, and provisions regarding technology in the workplace including e-mail, computers and social networking sites.

Employee handbooks can be helpful to clarify expectations of employees and to prevent or defend against wrongful termination claims.  For more information about drafting and enforcing employee handbooks or personnel policies under Minnesota law, visit www.minnesotaemployeehandbook.com.

Why Should Employers Conduct Performance Evaluations? 

Performance evaluations play an important role in identifying and curing problems with employees.  Performance reviews should be candid and reflect the truthful observations of the employer.  The feedback to employees should be constructive and communicated in writing.  It is important that a supervisor identify any major performance problems concisely and clearly.  A performance review should be in writing so that it can be included in the employee’s personnel file and provide documentation of the worker’s performance at that period in time.  The constructive nature of the feedback should include an identification of next steps in order for the employee to succeed.  It is important that the employee feel supported in making changes to his or her performance.

While performance evaluations can provide documentation for an employer, the employer can run into several problems while trying to create these records.  One of the biggest problems facing employers is poor training or the lack of experience of managers in completing performance evaluations.  Many supervisors have not received training on how to discuss or identify performance problems with employees.  Sometimes a manager fails to be honest or adequately complete the performance evaluation.  Sometimes the manager finds it difficult to discuss poor performance with an employee.  It is extremely important that the manager be completely honest in the performance evaluation process.  When the manager fails to address certain performance problems, these issues go unaddressed and the poor performance is not documented.  This can lead to trouble down the road when the company tries to terminate the employee.  If the employer decides to use performance evaluations, it is important that the employer make sure that the evaluations are truthful and timely.

Organizations should train supervisors about the importance of an honest evaluation.  The goals of a performance evaluation are to increase productivity with employees and to create documentation of performance.  It is often a good idea for more than one supervisor to contribute to a performance evaluation.  At the very least, someone in management should review the performance evaluations and approve them. 

Why Should Employers Engage in Progressive Discipline? 

Creating a procedure for discipline and termination is important in preventing wrongful termination claims.  Employers can run into trouble when they have poorly defined processes or procedures for giving performance warnings.  Without a process, supervisors may not give appropriate warnings or be able to accurately articulate areas of concern to the employee.  Supervisors may not recognize the importance of documenting warnings.  In a worst case scenario, a lack of procedure can lead to supervisors treating different employees differently, which can lead to wrongful termination claims.

When devising a disciplinary process, an employer should keep several things in mind:

• A warning, whether it is oral or written, does not need to be elaborate to be effective.
• A written summary of any oral warning after each occurrence ensures that all warnings are documented in the employee’s personnel file.

• Written documents are much more convincing and effective especially when the documentation is drafted at about the same time that the warning was given. 

• Advance warnings, whether oral or written, help prepare and alert the employee of potential problems.  When the employee is given a warning, he or she may feel that she can take steps to correct the problem.  When no advance warning is given, the employee can feel like the decision to discipline or terminate is arbitrary or capricious. 

• When there is documentation of performance problems, it is much more difficult for an employee to make a claim for wrongful termination.  Written documentation also serves the purpose to require managers to really think and analyze the situation carefully before giving a written warning. 

Given the important implications that written warnings and the disciplinary process have for an employer, it is very important that supervisors are trained in the procedure for administering and documenting warnings.  The employer may wish to create a disciplinary action form in order to control the information that is included with each written action.  Whenever possible, written warnings should be provided to an employee in order to better manage the expectations of the employee and to document the employee’s performance.

What is the “Last Chance Warning”? 

Sometimes an employer decides to use last chance warnings as part of its disciplinary and termination procedure.  A last chance warning can be a great tool for supervisors in the termination process.  Usually, a last chance warning contains a plan for the employee to improve performance before being terminated. 

The last chance warning provides a chance for supervisors to double check the facts and circumstances of the situation before terminating the employee.  In adopting the policy for utilizing last chance warnings, employers should use the last chance warning early enough so that the employee can have a meaningful opportunity to improve.  The terms of the last chance warning should be clear and use specific and objective standards for evaluating the employee’s performance.  It is helpful when the employee can become involved in the process and help formulate activities to be performed under any improvement plan and to help create any benchmarks to be attained during the plan.  The improvement plan should clear and state what disciplinary action will be taken if the employee fails to meet all of the objectives contained in the plan.

Sometimes employers run into problems when implementing last chance warnings.  In many cases, last chance warnings are used merely to set up termination.  Employers may set goals extremely high, fail to provide enough time to meet the objectives, or shut the employee out of any involvement in creating the improvement plan.  An improvement plan created in a collaborative process with the employee is viewed more legitimately, rather than a plan that is thrust upon an employee.  Creating a procedure and forms for supervisors to use in the improvement plan development process helps to prevent some of these problems.

Why Should Supervisors Get a Second Opinion Before Disciplining or Firing an Employee? 

Third party review before adopting a disciplinary action or firing an employee can help to prevent several problems associated with discipline and termination.  Seeking the review of a third party often provides a “reality check” for the supervisor.  Also, utilizing an independent reviewer strengthens the employer’s argument that the decisions regarding discipline or termination were made objectively and without consideration of the employee’s protected status.  In reviewing the disciplinary or termination matter, the reviewer must be given all the facts relevant to the circumstances so that the reviewer can come to an informed decision.  It is important that the independent reviewer not be involved in any way in the events surrounding the disciplinary action or termination.  Many employers find it difficult to find the time to review all disciplinary or termination actions.  However, such a review can prevent a supervisor from failing to consider the needs of the organization as a whole rather than focusing on the narrow occurrence at hand.  When creating a disciplinary policy, employers should include, when possible, third party review before any action is taken against an employee.  This will ensure that supervisors are taking appropriate actions in termination and disciplinary decisions.

What is Unlawful Discrimination? 

Federal law and various state laws prohibit discrimination or harassment based on certain protected characteristics.  Protected characteristics include race, color, religion, creed, age, sex, national origin, ancestry, marital status, disability, membership or non-membership in a labor organization, veteran status, membership or activity in a local commission, sexual orientation and status with regard to public assistance.  Federal and state discrimination laws prohibit employers from making an employment decision based on these protected characteristics.

The Minnesota Human Rights Act is the state law in Minnesota that prohibits discrimination in the workplace.  Title VII is the Federal law prohibiting discrimination in the workplace.  Title VII applies to employers with 15 or more employees.  The Civil Rights Act of 1964 (also known as Title VII) is the federal law that prohibits this type of discrimination based on race, color, religion, sex and national origin.  In addition to Title VII, the Age Discrimination in Employment Act is another federal law that prohibits discrimination on the basis of age. 

In the event an employee brings a claim alleging unlawful discrimination, an employer should seek the advice of an attorney in order to defend against the claim by preparing documentation and evidence of consistent adherence to employment rules and regulations.

What is Sex Discrimination? 

Federal and state law both prohibit employers from making employment decisions based on the sex of a job applicant or employee.  It is also unlawful for an employer to discriminate against an employee based on sex with respect to the terms and conditions of employment.  Examples of such discrimination can include basing a job assignment on the sex of the employee, classifying an employee based on his or her sex, laying off certain employees because of their sex, pay and promotion practices due to the sex of the employee, or other assumptions based on the gender of the employee.

Federal and state law also both prohibit employers from paying a different wage to employees of the opposite sex for equal work on jobs which require the same skills, effort and responsibility.  Recent changes in the law have extended the time limit for filing pay discrimination claims.


What is Sexual Harassment? 

Sexual harassment is a form of sex discrimination.  Sexual harassment can include sexual advances, inappropriate jokes, sexual innuendo, physical contact of a sexual nature, and pornography in the workplace which creates an intimating and hostile or offensive work environment.  Sexual harassment can also include situations where the employee is discriminated against for refusing the sexual advances of a co-worker or manager. 

Sexual harassment is not limited to a man harassing a woman.  Sexual harassment can include a woman harassing a man and people of the same sex harassing each other. 

What is Race Discrimination? 

Federal and Minnesota state law prohibit discrimination in the workplace based on race.  Race discrimination exists where an employer treats and employee differently based on the employee’s race.  Race discrimination can occur when an employee experiences harassment based on race or other behavior based on race.  Examples of racial discrimination include racial jokes, comments and intimidation by other employees.

Employers should create and maintain a clear policy against race discrimination.  It is important that employees understand that race discrimination will not be tolerated.  Having a policy is important to clearly articulate the employer’s policy as well as to provide a framework for individuals to report discrimination and harassment. 

What is National Origin Discrimination? 

National origin discrimination is very similar to race discrimination.  Both Federal and Minnesota state law prohibit discrimination based on national origin.  Just like race discrimination, discrimination based on national origin occurs where the employer treats an individual differently based upon an individual’s national origin.  Discrimination based on national origin can occur when the individual experiences derogatory remarks or jokes based on the individual’s national origin or is subjected to different terms or conditions of employment because of the individual’s national origin.  National origin discrimination can also encompass issues involving the ability of an applicant or an employee to communicate and speak a particular language.  Employers should be cautious about making employment decisions based on an applicant’s or employee’s ability to speak the language. 

What is Religious Discrimination? 

It is unlawful under both Federal and Minnesota state law for an employer to discriminate against an applicant or employee based on religious beliefs.  To the extent that a religious belief or practice does not interfere with job requirements or performance, employers should allow employees to practice their beliefs.  However, if making an accommodation for an employee to practice their faith at work creates more than a minimal hardship for the employer, the employer may not be required to make the religious accommodation.  If the accommodation creates minimal hardship for the employer, the employer should permit the practice.

What is Sexual Orientation Discrimination? 

Minnesota state law, along with some city ordinances, prohibit discrimination based on sexual orientation.  Federal law does not contain a similar prohibition.  Under Minnesota law, sexual orientation is an actual or perceived attachment to another person without regard to the sex of that person.  See Minn. Stat. § 363A.03.  Certain exceptions apply to the prohibition against discrimination based on sexual orientation including religious associations and certain non-public service organizations.  See Minn. Stat. § 363A.26; Minn. Stat. § 363A.20.

What is Marital Status Discrimination? 

Minnesota state law prohibits discrimination based on the marital status of an applicant or employee.  See Minn. Stat. § 363A.08.  This means that an employer cannot make an employment decision based on whether or not a particular applicant or employee is single, married, divorced or separated.  Minnesota state law also provides that an employer may not discriminate against an applicant or employee based on the actions of a spouse.  See Minn. Stat. § 363A.03.

What is Age Discrimination? 

Both Minnesota state law and federal law prohibit age discrimination in the workplace.  The Minnesota Human Rights Act prohibits discrimination against workers who are 18 years of age or older.  The federal Age Discrimination in Employment Act, defined as the ADEA, prohibits discrimination against workers who are 40 years of age or older.  The ADEA applies to employers with 20 or more employees.  While the ADEA is more focused on preventing discrimination against older workers, Minnesota law protects younger workers as well.  This means that employers need to be careful not to discriminate against workers based on their young age.  Age discrimination claims often come up in connection with perceived forced retirement or reductions in force.  An employer should work closely with an attorney to create any retirement programs or to implement a reduction in force.

Another trap for the unwary employer is the issue of retaining a waiver of rights under the age discrimination laws.  The Minnesota Human Rights Act and the ADEA hold specific requirements for a release of the age discrimination claims to be valid.  The Minnesota Human Rights Act and the ADEA both include a right of rescission.  Under the Minnesota Human Rights Act, an employee has a right to rescind an agreement within 15 days.  Under the ADEA, an employee has the right to rescind an agreement within 7 days.  The ADEA also requires that an employee be provided with at least 21 days to consider the agreement and to consult with legal counsel before signing an agreement.  It is important that any separation agreement, including a waiver of age discrimination claims, include specific language about the rescission periods and the consideration period allowed under both federal and state law.  The agreement should also include language about the employee’s right to seek the advice of an attorney as well as clearly enumerate the rights that the employee is waiving.  The waiver should be clear that the employee is not waiving rights arising in the future.  For more information on separation agreements, please visit www.minnesotaseparationagreement.com.

Employers should be aware of potential statute of limitations defenses to an employee's employment law claim: Statute of Limitations for Minnesota Employment Law Claims


Under the law, an employee must begin a legal proceeding to assert claims within certain designated periods (called “statutes of limitations”) or the employee will forfeit the claims.  Employers may be surprised to learn that the statute of limitations to pursue many common employment law claims is very short.  The chart below highlights the applicable statute of limitations for many common employment law claims in the State of Minnesota.


Type of Claim
Minnesota Statute of Limitation (Deadline) 
Federal Statute of Limitation (Deadline)
Discrimination (age, disability, race, color, national origin, sex, etc.) 
One (1) year from the act of discrimination
300 days from the act of discrimination
Harassment (sexual harassment, racial harassment, etc.) 
One (1) year from the act of discrimination
300 days from the act of discrimination
Retaliation for Reporting Discrimination or Harassment 
One (1) year from the act of discrimination
300 days from the act of discrimination
Unpaid Wages, Unpaid Commissions, Overtime
Two (2) years from the date the wages should have been paid; Three (3) years if the failure to pay was willful 
Two (2) years from the date the wages should have been paid; Three (3) years if the failure to pay was willful
Breach of Employment Contract
Most likely two (2) years from the date the contract was breached if the action is primarily to recover unpaid wages; possibly longer in other situations  
Two (2) years from the date the defamatory statement was made 


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