February 24, 2015

"Working Parents Act" Introduced in Minnesota Legislature

Proposed Legislation Would Make Significant Changes to Existing Minnesota Employment Laws

Legislation was recently introduced in the Minnesota House of Representatives and Minnesota Senate that is being referred to by its authors as the “Working Parents Act” that would significantly expand the scope of several existing Minnesota employment laws and create a number of new legal requirements for Minnesota employers.

 

The Working Parents Act incorporates provisions of other proposed legislation currently being considered by the Minnesota House and Senate that would require all Minnesota employers to provide paid sick leave to nearly all employees, expand the existing pregnancy and parenting leave law to apply to foster parents and caregivers of adult family members, and create a state paid family leave insurance program. In addition, the Working Parents Act would impose new limitations on an employer’s ability to change a worker’s schedule less than 21 days in advance and may require additional or premium pay to employees in certain situations.

 

The Working Parents Act would also make far-reaching changes to Minnesota wage-hour laws, including lengthening the existing statute of limitations for wage-related claims to six years, increasing the potential damages an employee could recover in a civil action, and enhancing potential criminal offenses and increasing fines that may be imposed against an employer for violating certain wage-hour laws. The legislation would also require employers to provide a written statement to employees upon hire and each year during their employment describing a number of specific terms and conditions of their employment.

 

This legislation—House File 1093—was first introduced in the Minnesota House of Representatives on February 19, 2015. On February 23, 2015, a companion bill—Senate File 1085—was introduced in the Minnesota Senate.

 

Summary of Key Provisions of Working Parents Act

 

The proposed legislation in its entirely as introduced is available at House File 1093 and Senate File 1085. Below, we have summarized and highlighted certain provisions of the proposed legislation:

  1. The Working Parents Act, which incorporates the legislation proposed by House File 549/Senate File 481, would significantly expand Minnesota’s sick leave law and require all Minnesota employers to provide paid sick leave to nearly all employees. For a detailed description of House File 549/Senate File 481, please see our earlier article on this proposed legislation.

 

  1. The Working Parents Act also incorporates the provisions of House File 580/Senate File 779, which would expand Minnesota’s pregnancy and parenting leave law to apply to foster parents and those employees who care for adult family members and would establish a state insurance program that would pay weekly benefits for up to six weeks to employees who take qualifying pregnancy, parenting or caregiver leave.  For a detailed description of House File 580/Senate File 779, please see our earlier article on this proposed legislation.

 

  1. The Working Parents Act would impose new restrictions on an employer’s ability to change an employee’s work schedule. Under this portion of the legislation, which has been called the “Fair Scheduling Act,” employers would be subject to a long list of new requirements, including:

 

  • Providing every employee (including every exempt employee) with a work schedule in writing at least 21 days in advance. The employer would be required to contact each employee before making any change to this schedule.
  • Starting an employee’s work week on the same day of each week.
  • Prohibiting employers from requiring an employee to find a replacement worker for any shifts or hours an employee is unable to work for any reason.
  • Engaging in an “interactive process” to consider an employee’s request for a “flexible working arrangement.”

 

  • A “flexible working arrangement” could include changes to the employee’s work schedule, part-time employment, job sharing arrangements, telecommuting, change in the location of the employee’s worksite, reduction or change in work duties, or part-year employment.
  • An employer would be required to grant an employee’s request for a flexible working arrangement if it is requested on the basis of a serious health condition of the employee, the employee’s responsibilities as a caregiver, or the enrollment in a career-related educational or training program, or if a part-time employees makes the request for a reason related to a second job.

 

  • Employers would be required to provide additional monetary compensation to an employee for certain changes to an employee’s shift made less than 21 days in advance. This additional compensation is referred to as “predictability pay.” It is not clear what criteria would be used to determine whether there has been a change to a shift for an exempt employee such that predictability pay would be owed or how the predictability pay would be calculated for an exempt employee.

 

  • For changes to the shift made more than 24 hours in advance of the start of the shift, the employer would be required to pay the employee one hour of predictability pay at the employee’s regular rate of pay.
  • If the employer adds hours to the shift or changes the start or end time of the shift less than 24 hours in advance, the employer would be required to pay the employee one hour of predictability pay.
  • If the employer cancels the scheduled shift or reduces the hours in the shift with less than 24 hours’ notice, the employer would be required to pay predictability pay for the lesser of four hours or the number of hours originally scheduled for the shift.

 

  • An employee would be free to decline work hours that occur (1) less than 11 hours after the end of the previous shift, or (2) during the 11 hours following the end of the shift that spanned two days. If the employee did work such hours, the employer would be required to pay the employee at one and one-half their regular rate of pay.
  • Employers would be prohibited from paying a different rate of pay based on the number of hours an employee is scheduled to work to employees “whose jobs require equal skill, effort, and duties, and that are performed under similar working conditions.”
  • Employers would be prohibited from conditioning eligibility for leave, time off, raises or promotions based on the number of hours an employee is scheduled to work for employees “whose jobs require equal skill, effort, and duties, and that are performed under similar working conditions.”
  • If an employer has additional hours of work available in positions held by current employees, then the employer would be required to offer additional work hours to current qualified employees before hiring new employees or contractors, including the use of temporary services or staffing agencies.
  • Employers would be prohibited from retaliating against any employee who asserts rights under the Fair Scheduling Act, for assisting any other person in doing so, or for informing any person about his or her rights under the Fair Scheduling Act.
  • If an employer violates the Fair Scheduling Act, employees would have the right to pursue a civil action for injunctive relief and damages, a penalty equal to twice the amount of damages, costs and attorneys’ fees.

 

  1. The Working Parents Act would increase the potential penalties for violations of Minnesota wage-hour laws.

 

  • Currently, in addition to any compensatory damages owed to the employee, if an employer is found to have violated certain Minnesota wage-hour laws, the employer must also pay liquidated damages equal to the amount of unpaid wages, overtime, gratuities, and predictability pay. The proposed legislation would double this penalty and also permit the Commissioner of the Department of Labor to order civil penalties of up to $1,000 per violation (with no aggregate cap on such penalties).
  • The civil penalty imposed upon the employer for repeat or willful violations of wage-hour laws would increase from up to $1,000 to at least $5,000, but no more than $10,000, for each violation for each employee (but again with no aggregate cap on the penalties that may be imposed).
  • Upon finding that an employer has repeatedly or willfully violated certain Minnesota wage-hour laws, the Commissioner of the Department of Labor and Industry would be given the authority to order any state, county, or municipal agency, or municipality to revoke or suspend any license or permit that it has issued to the employer necessary for the employer to conduct its business.

 

  1. In addition, the Working Parents Act would increase the potential criminal liability of an employer for certain violations of the Minnesota Fair Labor Standards Act.

 

  • Presently, an employer may be found guilty of a misdemeanor for paying wages at a rate less than the rate required by the Minnesota Fair Labor Standards Act. The proposed legislation would make it a gross misdemeanor when an employer fails to pay wages due an employee under the Minnesota Fair Labor Standards Act if the total amount of such unpaid wages in relation to all affected employees is $5,000 or more.
  • The legislation would make it a felony if an employer is convicted of a misdemeanor or gross misdemeanor for failing to pay wages due an employee and is then subsequently convicted of a second such offense within two years of the first conviction.
  • The minimum criminal fines for a criminal conviction for discharging or discriminating against an employee who has asserted rights under the Minnesota Fair Labor Standards Act would also be increased from $700 to $5,000, and the maximum penalty would be increased from $3,000 to $10,000.

 

  1. The Working Parents Act would significantly expand the statute of limitations on claims brought to recover unpaid wages or overtime. Currently, the statute of limitations for claims to recover unpaid wages or overtime is two years, or three years for willful violations. Under the proposed legislation, the statute of limitations would be expanded to six years for any claim to recover unpaid wages or overtime (including any penalties related to such claims).

 

  1. The legislation would create a new statute prohibiting an employer from discharging or taking any adverse action against any person in retaliation for asserting a claim or right under the Minnesota Fair Labor Standards Act, for assisting any other person in doing so, or for informing any person about their rights under that Act. This new statute would create a rebuttable presumption that any adverse action taken against an employee within one year of the employee engaging in any protected conduct is retaliation. The employer may rebut such presumption by clear and convincing evidence that the action was taken for other permissible reasons.

 

  1. The Working Parents Act would make a number of other changes to existing Minnesota wage-hour laws and rules, including:

 

  • Employers would be required to provide (a) one paid rest break of at least 10 minutes every four consecutive hours worked (current law requires that each employee be given “adequate time from work” within each four consecutive hours of work to utilize the nearest convenient restroom) and (b) one unpaid meal break of at least 30 minutes for employees who work at least five consecutive hours (current law requires that “each employee who is working for eight or more consecutive hours [receive] sufficient time to eat a meal”).
  • Employers would be required to pay employees the full amount of any gratuity paid by a customer to the employee, whether such gratuity is given through a debit, charge or credit card.

 

  1. The legislation would require employers to provide a written statement to each employee (including both non-exempt and exempt employees) containing certain information about the terms and conditions of the employee’s employment and his or her rights to each employee at least annually and to new hires prior to the start of work. This statement would be required to contain, among other things, the following:

 

  • The hours of work each day and number of days per week the employee will be required to work.
  • The wages that will be paid the employee and the frequency and nature of payment of those wages.
  • The anticipated period of employment.
  • A description of the nature of the work to be performed by the employee.
  • A description of any benefits provided to the employee, including how long such benefits will be provided to the employee and the amount the employee will be required to pay for such benefits.
  • Information regarding any known local, state or federal investigation into the employer’s health or safety practices over the prior five years and the outcome of such investigation, if known.

 

  1. The Working Parents Act also would expand the scope of information to be included on each employee’s earnings statement by adding the following additional requirements:

 

  • The total amount of overtime pay, gratuities and any additional compensation (including predictability pay) earned by the employee during the pay period.
  • The total amount of expense reimbursements paid to the employee during the pay period.
  • The total amount of employer-provided leave used by the employee during the pay period and the total amount of employer-provided leave available for the employee to use.

 

Status of Proposed Legislation

 

House File 1093 has been referred to the House’s Job Growth and Energy Affordability Policy and Finance Committee. To date, a hearing on the bill has not been scheduled. Senate File 1085 has been referred to the Senate’s Jobs, Agriculture and Rural Development Committee. To date, a hearing on the bill has not been scheduled. We will monitor this legislation closely and provide further information as the circumstances warrant.

For more information about the potential effect of this legislation, contact a member of Faegre Baker Daniels’ labor and employment practice.

For further information about this and other developments at the Minnesota Legislature, contact a member of Faegre Baker Daniels’ governmental relations practice.

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