The POWER 30: Nicholas May

Despite Gov. Tim Walz’s explicit executive orders requiring working from home during the pandemic, some employees are subject to pressure from employers to return to the workplace. Minneapolis attorney Nicholas May is in the prelitigation stage of a case over a pretty blatant directive to return.

“It’s indicative of the number of cases over work from home rules,” May said. Most employers have gone along with it, but some have been “horrid,” leading to cases involving whistleblowing and retaliation.

“We will be living with COVID for several years,” May said.

(Walz has directed employers to “strongly encourage” working from home as of April 14.)

COVID-19 is having its effect at the C-suite level, May said. There are a fair amount of executive employees moving around either because of a career move or a layoff. That brings up the subject of noncompete agreements. The second half of 2020 saw even more upper-level executives subject to adverse employment actions as businesses started to try to figure out the future, he said.

However, May has not seen any evidence of businesses using COVID as a “cover” in the absence of a business justification in those situations, he said.

Disability accommodation is a continuing issue, May said. He recently handled a matter where an employee needed computer equipment to accommodate a disability. As in many cases, the parties differed on the reasonableness of the accommodation.

The direction from the bench is trending to be good for employees, May said. In Hall v. City of Plainview, he pointed out, the court said that disclaimer language in an employee handbook did not unambiguously preclude finding an enforceable unilateral employment contract. May wrote an amicus brief for the National Employment Lawyers Association – Minnesota Chapter. “I didn’t think the court would take that case,” May said. “The fact that the court would take that kind of issue indicates that it is much more plaintiff-friendly than it has been in the past.”

Throughout the history of the “protected class,” progress has always been two steps forward and one back, May said. “I’d like to believe the [Minnesota] Supreme Court will take more than two steps.”

He sees social mores changing in a way that will produce more empathy toward employees encountering discrimination. He won a jury trial in Dakota County with a transgender client. Conventional wisdom might indicate that Dakota County jurors might not be receptive to a transgender case, but that didn’t happen. “Jurors are more aware, and that’s a positive,” May said.
In the meantime, May advises employers to be patient. “If they’ve made it this far (into the pandemic) they’re going to make it. Have some compassion. Try not to blow things up.”