Just last week, I complained that courts are too often rubber-stamping excessive police force. On cue, the Minnesota Court of Appeals issued a great decision today for Minnesotans who care about police accountability.

In City of Richfield v. Law Enforcement Labor Services, Inc. (on behalf of Nathan Kinsey), the Court of Appeals overturned an arbitrator’s decision to reinstate Nathan Kinsey, who was fired by the City of Richfield police department for repeatedly failing to report use of force.

From the decision:

We agree that Kinsey’s repeated failure to report his use of force makes him a serious risk to public safety and the interest of the public must be given precedence over the arbitration award reinstating him.

…

Reinstating Kinsey—an officer who admittedly failed to report his use of force when he should have and has had prior offenses and warnings regarding the same duty to report—interferes with the RPD’s legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force.

Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force.

We are aware that our decision today is only the second time this court has vacated an arbitration award involving the reinstatement of a Minnesota Police Officer because of a violation of public policy. See Brooklyn Center, 635 N.W.2d 236 (applying the public- policy exception to vacate an arbitration award that reinstated a Minnesota Police Officer for the first time). We do not take this action lightly, but rather thoughtfully and unanimously. Nevertheless, we are obligated to follow the law. To do otherwise would violate a well-defined and dominant public policy by jeopardizing public safety and undermining public trust in law enforcement.

Yesterday, Madia Law Attorney Joshua Newville argued before the Minnesota Supreme Court in Sanchez v. Dahlke Trailer Sales, Inc., No. 15-1183. The precedent-setting case has enormous implications for undocumented workers who are injured on the job in Minnesota.

We picked this case up just 3 weeks before trial.  It had an interesting procedural history: the district court judge originally dismissed the case on summary judgment and held that defendants won as a matter of law.  The plaintiff, John, appealed the case on his own – pro se – to the Minnesota Court of Appeals with the help of his wife, who is a practicing criminal defense attorney.  The Court of Appeals reversed the grant of summary judgment and held that a jury needed to determine fact disputes before either side won.  So it was sent back down to the district court for trial.  John retained us just 3 weeks before his trial date.

The basic facts: John had partnered with “Jim” to create a start-up company.  The two worked together for a year and half building the company.  A major retailer expressed interest in buying the company’s product and putting it on shelves for the holiday season to test it out.  John and Jim agreed that John would acquire a 10% ownership stake in the company when the retailer issued it’s purchase order.

A few months before the retailer issued a purchase order, John and Jim had some disagreements relating to the company.  Jim then reached out to several of John’s acquaintances for help, including “Kip,” the broker negotiating the deal with Retailer.  Kip then worked with Jim to try to pressure and force John to release his ownership interest in the company.  When those efforts failed, Kip contacted Retailer and told it to cancel its purchase order.  Retailer cancelled the order, and John therefore didn’t acquire 10% of the company.

John sued Kip for interfering with the contact he had with Jim.  The jury found that Kip tortuously interfered with the contract and, after a 5 day trial, awarded him $175,000.

In Hartfiel v. Allison, A15-1149 (Minn. App. Jan. 25, 2016), the Minnesota Court of Appeals reversed the lower court’s grant of summary judgment on a negligent retention claim while affirming the lower court’s grant of summary judgment on a negligent hiring claim.

In this case, an employee of the defendant attacked an independent contractor with a three-and-a-half foot steel bar.  The independent contractor sued the employer for negligent hiring and negligent retention, among other things.

The Minnesota Court of Appeals explained that there is a difference between these two claims, primarily in regard to when in the timeline of events the relevant facts are found:

“Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness, and the issue of liability primarily focuses upon the adequacy of the employer’s pre-employment investigation into the employee’s background.  Negligent retention, on the other hand, occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.”

Hartfield, at 10, citing Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).

Negligent hiring, then, focuses on the time period before the employee is actually hired and only the employer’s actions before hiring can render an employer liable.  In Hartfiel, the independent contractor failed to establish any failure of the employer’s “pre-employment investigation into the employee’s background.”  The Court reiterated holdings from other negligent hiring cases that “[a]n employer does not have a duty, as a matter of law, to inquire about a prospective employee’s criminal record.”  Hartfiel, at 9.  Only if the “totality of circumstances” intimates that the employer should have been on notice of an employee’s problematic propensities does the law impose a duty on the employer to do a further investigation into the employee before hiring.  Id.  In Hartfiel, because nothing in the employer’s normal hiring process could have made them aware of the employee’s violent tendencies, the employer could not have been found negligent in its hiring of the employee.  Therefore, the Court affirmed summary judgment on that count.

However, negligent retention focuses on the time period after the employee has been hired and the employer’s actions during the employee’s employment can give rise to liability.  In Hartfiel, the independent contractor established that the employer knew of the employee’s violent tendencies through “gossip.”  The owner of the employer-company had heard through office gossip that the employee had smacked a subcontractor while the subcontractor and other employer-employees were out for drinks after work.  Additionally, the shop foreman of employer kept a gun on him because the employee threatened him.  These two facts alone were enough, in the Court of Appeals opinion, for a jury to draw the inference that the employer knew, or should have known, that the employee had violent tendencies.

The facts in Hartfiel suggest that the threshold of production to defeat summary judgment in a negligent retention case is lower than previously thought.  In Hartfiel, while the plaintiff testified that the shop foreman was fearful of the employee and had been threatened by the employee, the shop foreman actually denied ever being threatened by or being afraid of the employee.  Additionally, the plaintiff admitted, and the owner of employer-company confirmed, that the assault in the bar was never formally reported.  However, the owner of employer-company testified that he had heard about the incident in the “form of gossip” and took no action to investigate.  This evidence alone was enough to defeat summary judgment.

It appears, then, that an employer needs minimal information to be “on notice” of an employee’s undesirable tendencies and before the law imposes a duty on the employer to take action to limit the threat such an employee poses.

On Monday, June 6, 2016, Madia Law secured a victory at the Minnesota Court of Appeals on behalf of an injured, undocumented worker who was fired after pursuing workers’ compensation benefits.

The case is a win for undocumented workers, as the Defendant argued that such workers are not entitled to the protections of Minnesota anti-reprisal laws.

The decision holds:

1. Undocumented workers are entitled to the protections of Minn. Stat. 176.82, subd. 1. The defendant employer argued that such a cause of action is preempted by the federal Immigration Reform and Control Act.

2. Putting an undocumented employee on an indefinite, unpaid leave constitutes an adverse employment action under the Minnesota Workers Compensation Act. The defendant employer argued that the Act defines adverse action only to include termination.

Sanchez’s appeal was about whether Minnesota law permits an employer—having enjoyed the fruits of an employee’s labor for many years without any objection to that employee’s undocumented immigration status—to then use that status to claim exemption from anti-retaliation and anti-discrimination laws.

On March 23, 2016, a three-judge panel of the Minnesota Court of Appeals will hold a non-oral hearing in Sanchez v. Dahlke Trailer Sales, Inc., No. 15-1183. The precedent-setting case has enormous implications for undocumented workers who are injured on the job in Minnesota.