June 2012

By: James B. Sherman, Esq.

Imagine you terminated an employee just this week. Then imagine that a day or so later that same, now former, employee sends you a letter or email demanding that you provide them with the “truthful reason” for their termination. Assuming you already told the employee the day you let him or her go why they were being discharged, you might be inclined to consider such a request to be late, redundant or simply harassing. However, before ignoring any request for information from someone that has been fired it is best to first understand all the legal rights our government has given not only to employees but also to former employees. In Minnesota, besides the right to get a copy of their personnel file and/or to be paid all wages “due and owing” within 24 hours of a demand, terminated employees also have the right – unique among most states – to demand that their former employer provide them with the “truthful reason” why they were terminated.

The truth be known very few people know this right exists. Most lawyers, unless they focus their practice in employment law in Minnesota, do not come across this rather obscure statute. It is, after all buried in subdivision 1 of subsection .933 of Chapter 181, which covers a wide array of employment laws. Therefore, here is some advice on a little secret many folks understandably do not know: If someone you have fired turns around and asks you to provide them with a written explanation of the “truthful reason” why they were let go, it should be presumed that person has been talking to an experienced plaintiff-side employment lawyer. Therefore you should not respond to the request without getting some legal advice yourself.

This law has been on the books in Minnesota since 1987. It was amended in 2001 and provides as follows: “An employee who has been involuntarily terminated may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for termination. Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.” (Emphasis supplied)

There are few court decisions interpreting this little known statute. Frankly, for more than 20 years since it became law very few people ever invoked this right, probably because neither they nor their lawyers knew anything about it. However, more and more court decisions these days are using an employer’s shifting reasons offered to justify a challenged termination, as evidence that the employer’s explanation is really a “pretext” to cover up discrimination or wrongful termination. This “ticket to victory,” if you will, seems to have caught the attention of many plaintiff attorneys in recent years. Though it is only anecdotal evidence, having been licensed to practice law in Minnesota since 1987 – the year this odd statute became law – I have noticed a marked increase in the number of “truthful reason” requests our clients are seeing in recent years.

Make no mistake, the only “truthful reason” why any fired employee would ask their former employer to commit to paper the reason for terminating them is to get the employer committed to that document forever. In any subsequent hearing on eligibility for unemployment compensation, that written reason will be used against the employer. In any agency proceeding before the EEOC, the DOL, the MDHR, etc. that written reason can again be expected to be held over the employer’s head. Finally, perhaps 2, 3 and even 4 years later when a wrongful discharge case has wound its way through the legal justice system to trial, again, expect to be anchored to that written statement Minnesota law required you to commit to years earlier within just ten working days of an employees written request.

Employees and their advocates appear to be using this relatively obscure law far more often today than ever before. These people know the potential advantage to be gained over unwary employers. We want employers to be aware of this seemingly growing trend. Those who have never before had an employee ask for the reason for his or her discharge, in writing, are likely to see this one day. The most important thing is to recognize what such a request presents: (1) again, chances are extremely high that any employee requesting the reason for their termination is talking to a plaintiff lawyer who is experienced in employment law; (2) if the request is timely made (within 15 working days of the termination), in writing, Minnesota law requires that an employer respond, in writing, within 10 working days of receipt of the request; and (3) the written answer you give can and will be used against you in a court of law.

Anyone that receives one of these “truthful reason” requests should talk to an experienced employment lawyer immediately, before ignoring or responding to the request. To do otherwise is akin to communicating with a plaintiff lawyer without representation; it’s not a good idea. For questions or assistance with demands of any kind made by a terminated employee, contact attorney James B. Sherman at (952) 746-1700, or email jasherman@wesselssherman.com.