The POWER 30: Nicholas May

There are a fair amount of executive employees moving around either because of a career move or a layoff, said Nicholas May of Fabian May & Anderson in Minneapolis. In 2020 and 2021 more upper-level executives were 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.

It is a time of labor shortages, low unemployment and consistent changes in jobs and work environments. The direction from the bench is trending to be good for employees, he added. In 2021 in Hall v. City of Plainview, he pointed out, the Supreme Court said that disclaimer language in an employee handbook did not unambiguously preclude finding an enforceable unilateral employment contract. The laid off employee sought to collect unused Paid Time Off hours.

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.”

In Plainview the court analyzed the case under Pine River State Bank v. Mettille, a 1983 opinion that set forth requirements for the formation of a unilateral employment contract. It said that the handbook contains sufficiently definite terms regarding the city’s PTO program to satisfy the requirements of Pine River and its progeny.

It also said that “If the City truly wanted to preserve the right to withhold accrued PTO compensation from an employee after the employee had performed work for the City while the provision governing payment for accrued PTO was in place, it should have been more precise and clear about that intent.”

May 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.”