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Beware the fickle judgment of jury trials

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in Employment Law,Human Resources

Because juries are notoriously unpredictable, most attorneys advise doing everything possible to avoid jury trials. Even so, juries often wind up deciding employment law cases because of the subtlety of the issues involved.

One of the questions juries often settle is whether an employer’s particular decision about working conditions amounted to an “adverse employment action.” That’s especially true in retaliation cases of the kinds that often follow a discrimination complaint or whistle-blowing activity.

In the following case, the Minnesota Court of Appeals sent a case to trial so a jury can decide whether taking away an employee’s telecommuting opportunity might be retaliation.

Recent case: Terrance Swanson worked as a safety investigator for the Occupational, Safety and Health Division of the Minnesota Department of Labor. For 16 years, he worked out of an office in his home in Babbitt.

Then Swanson recommended issuing a safety citation to the Minnesota Power and Light Company (MP&L) after a serious workplace injury occurred—even though the utility was exempt from citations because it was enrolled in a safety program run through the Minnesota Department of Labor. The agency rejected Swanson’s recommendation, and he protested.

Shortly after, he was told he couldn’t work from home anymore and would have to commute to an office 100 miles away.

Swanson filed a retaliation lawsuit under the Minnesota Whistleblower Act, claiming he was being punished for trying to cite MP&L. His case was dismissed and he appealed.

The Minnesota Court of Appeals reinstated Swanson’s suit and said a jury should decide whether making him commute so far amounted to an adverse employment action meant to punish him. (Swanson v. State of Minnesota, No. A08-0553, Minnesota Court of Appeals, 2009)

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