HF 39

3rd Engrossment - 92nd Legislature (2021 - 2022) Posted on 04/09/2021 12:46pm

A bill for an act
relating to employment; providing rehire and retention protections for laid-off
workers during a declared emergency; imposing civil penalties; appropriating
money.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Applicability. new text end

new text begin For the purposes of sections 1 to 4, the following terms
have the meanings given in this section.
new text end

new text begin Subd. 2. new text end

new text begin Air carrier. new text end

new text begin "Air carrier" means a person undertaking by any means, directly
or indirectly, to provide air transportation of persons, property, or mail.
new text end

new text begin Subd. 3. new text end

new text begin Aircraft. new text end

new text begin "Aircraft" means any contrivance invented, used, or designed for
navigation of or flight in the air, but excluding parachutes.
new text end

new text begin Subd. 4. new text end

new text begin Airport. new text end

new text begin "Airport" means any area of land or water, except a restricted landing
area, which is designed for the landing and takeoff of aircraft, whether or not facilities are
provided for the shelter, surfacing, or repair of aircraft, or for receiving or discharging
passengers or cargo, and all appurtenant areas used or suitable for airport buildings or other
airport facilities, and all appurtenant rights-of-way, whether heretofore or hereafter
established.
new text end

new text begin Subd. 5. new text end

new text begin Airport authority. new text end

new text begin "Airport authority" means an authority created pursuant to
Minnesota Statutes, section 360.0426.
new text end

new text begin Subd. 6. new text end

new text begin Airport facility management. new text end

new text begin "Airport facility management" means a person
directing or supervising airport management activities, including but not limited to:
new text end

new text begin (1) information management;
new text end

new text begin (2) building and property management;
new text end

new text begin (3) civil services;
new text end

new text begin (4) procurement and logistics management; and
new text end

new text begin (5) legal services.
new text end

new text begin Subd. 7. new text end

new text begin Airport hospitality operation. new text end

new text begin (a) "Airport hospitality operation" means a
business that:
new text end

new text begin (1) prepares, delivers, inspects, or provides any other service in connection with the
preparation of food or beverage for aircraft crew or passengers at an airport; or
new text end

new text begin (2) provides food and beverage, retail, or other consumer goods or services to the public
at an airport.
new text end

new text begin (b) Airport hospitality operation does not include an air carrier certified by the Federal
Aviation Administration.
new text end

new text begin Subd. 8. new text end

new text begin Airport service provider. new text end

new text begin (a) "Airport service provider" means a business that
performs, under contract with a passenger air carrier, airport facility management, or airport
authority, functions on the property of the airport that are directly related to the air
transportation of persons, property, or mail, including but not limited to:
new text end

new text begin (1) the loading and unloading of property on aircraft;
new text end

new text begin (2) assistance to passengers under Code of Federal Regulations, title 14, part 382;
new text end

new text begin (3) security;
new text end

new text begin (4) airport ticketing and check-in functions;
new text end

new text begin (5) ground-handling of aircraft;
new text end

new text begin (6) aircraft cleaning and sanitization functions; or
new text end

new text begin (7) airport authority.
new text end

new text begin (b) Airport service provider does not include an air carrier certificated by the Federal
Aviation Administration.
new text end

new text begin Subd. 9. new text end

new text begin Building service. new text end

new text begin "Building service" means janitorial, building maintenance,
or security services.
new text end

new text begin Subd. 10. new text end

new text begin Business day. new text end

new text begin "Business day" means Monday through Friday, excluding any
holidays as defined in Minnesota Statutes, section 645.44.
new text end

new text begin Subd. 11. new text end

new text begin Change in control. new text end

new text begin "Change in control" means any sale, assignment, transfer,
contribution, or other disposition of all or substantially all of the assets used in the operation
of an enterprise or a discrete portion of the enterprise that continues in operation as an
enterprise, or a controlling interest, including by consolidation, merger, or reorganization,
of the incumbent employer or any person who controls the incumbent employer.
new text end

new text begin Subd. 12. new text end

new text begin Declared emergency. new text end

new text begin "Declared emergency" means a national security or
peacetime emergency declared by the governor under Minnesota Statutes, section 12.31, a
local emergency declared by the mayor of a municipality or the chair of a county board of
commissioners under Minnesota Statutes, section 12.29, a federal public health emergency
declared by the secretary of the Department of Health and Human Services, or a major
disaster or national emergency declared by the president.
new text end

new text begin Subd. 13. new text end

new text begin Eligible employee. new text end

new text begin (a) "Eligible employee" means an individual:
new text end

new text begin (1) whose primary place of employment is at an enterprise subject to a change in control;
new text end

new text begin (2) who is employed directly by the incumbent employer, or by an employer who has
contracted with the incumbent employer to provide services at the enterprise subject to a
change in control; and
new text end

new text begin (3) who has worked for the incumbent employer for at least one month prior to the
execution of the transfer document.
new text end

new text begin (b) Eligible employee does not include a managerial, supervisory, or confidential
employee.
new text end

new text begin Subd. 14. new text end

new text begin Employee. new text end

new text begin "Employee" means an individual who performs services for hire
for at least two hours in a particular week for an employer.
new text end

new text begin Subd. 15. new text end

new text begin Employer. new text end

new text begin "Employer" means any person who directly, indirectly, or through
an agent or any other person, including through the services of a temporary service or staffing
agency or similar entity, owns or operates an enterprise and employs one or more employees.
new text end

new text begin Subd. 16. new text end

new text begin Enterprise. new text end

new text begin "Enterprise" means a hotel, event center, airport hospitality
operation, airport service provider, or the provision of building service to office, retail, or
other commercial buildings.
new text end

new text begin Subd. 17. new text end

new text begin Event center. new text end

new text begin (a) "Event center" means a publicly or privately owned structure
of more than 50,000 square feet or 2,000 seats that is used for the purposes of public
performances, sporting events, business meetings, or similar events, and includes concert
halls, stadiums, sports arenas, racetracks, coliseums, and convention centers.
new text end

new text begin (b) Event center also includes any contracted, leased, or sublet premises connected to
or operated in conjunction with the event center's purpose, including food preparation
facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.
new text end

new text begin Subd. 18. new text end

new text begin Hotel. new text end

new text begin (a) "Hotel" means a building, structure, enclosure, or any part thereof:
new text end

new text begin (1) used as, maintained as, advertised as, or held out to be a place where sleeping
accommodations, lodging, and other related services are furnished to the public; and
new text end

new text begin (2) containing 75 or more guest rooms, or suites of rooms, except adjoining rooms do
not constitute a suite of rooms. The number of guest rooms, or suites of rooms, shall be
calculated based on the room count on the opening of the hotel or on December 31, 2019,
whichever is greater.
new text end

new text begin (b) Hotel also includes any contracted, leased, or sublet premises connected to or operated
in conjunction with the hotel's purpose, or providing services thereat.
new text end

new text begin Subd. 19. new text end

new text begin Incumbent employer. new text end

new text begin "Incumbent employer" means a person who owns or
operates an enterprise subject to a change in control prior to the change in control.
new text end

new text begin Subd. 20. new text end

new text begin Laid-off employee. new text end

new text begin "Laid-off employee" means any employee who was
employed by the employer for six months or more in the 12 months preceding January 31,
2020, and whose most recent separation from actively performing services for hire occurred
after January 31, 2020, and was due to a public health directive, government shutdown
order, lack of business, a reduction in force, or other economic, nondisciplinary reason
related to the declared emergency.
new text end

new text begin Subd. 21. new text end

new text begin Length of service. new text end

new text begin "Length of service" means the total of all periods of time
during which an employee has actively been performing services for hire with the employer,
including periods of time when the employee was on leave or on vacation.
new text end

new text begin Subd. 22. new text end

new text begin Person. new text end

new text begin "Person" means an individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company, business trust, estate,
trust, association, joint venture, agency, instrumentality, or any other legal or commercial
entity, whether domestic or foreign.
new text end

new text begin Subd. 23. new text end

new text begin Successor employer. new text end

new text begin "Successor employer" means a person that owns or
operates an enterprise subject to a change in control after the change in control.
new text end

new text begin Subd. 24. new text end

new text begin Transfer document. new text end

new text begin "Transfer document" means the purchase agreement or
other documents creating a binding agreement to effect the change in control.
new text end

Sec. 2.

new text begin EMERGENCY REHIRE AND RETENTION OF LAID-OFF EMPLOYEES.
new text end

new text begin Subdivision 1. new text end

new text begin Rehire and recall requirements. new text end

new text begin (a) An employer shall offer its laid-off
employees in writing, to their last known physical address, and by e-mail and text message
to the extent the employer possesses such information, all job positions that become available
after the effective date of this section for which the laid-off employees are qualified. A
laid-off employee is qualified for a position if the employee either:
new text end

new text begin (1) held the same or similar position at the enterprise at the time of the employee's most
recent separation from actively performing services for hire with the employer; or
new text end

new text begin (2) is or can be qualified for the position with the same training that would be provided
to a new employee hired into that position.
new text end

new text begin (b) The employer shall offer positions to laid-off employees in an order of preference
corresponding to paragraph (a), clauses (1) and (2). If more than one employee is entitled
to preference for a position, the employer shall offer the position to the laid-off employee
with the greatest length of service for the enterprise.
new text end

new text begin (c) A laid-off employee who is offered a position pursuant to this section shall be given
at least five business days in which to accept or decline the offer. An employer may make
simultaneous conditional offers of employment to laid-off employees, with a final offer of
employment conditioned on application of the priority system in paragraph (b).
new text end

new text begin (d) An employer that declines to recall a laid-off employee on the grounds of lack of
qualifications and instead hires someone other than a laid-off employee shall provide the
laid-off employee a written notice within 30 days identifying those hired in lieu of that
recall, along with all reasons for the decision.
new text end

new text begin (e) This section also applies in any of the following circumstances:
new text end

new text begin (1) the ownership of the employer changed after the separation from employment of a
laid-off employee but the enterprise is conducting the same or similar operations as before
the declared emergency;
new text end

new text begin (2) the form of organization of the employer changed after the declared emergency;
new text end

new text begin (3) substantially all of the assets of the employer were acquired by another entity which
conducts the same or similar operations using substantially the same assets; or
new text end

new text begin (4) the employer relocates the operations at which a laid-off employee was employed
before the declared emergency to a different location.
new text end

new text begin Subd. 2. new text end

new text begin Successor employer and retention requirements new text end

new text begin (a)(1) The incumbent
employer shall, within 15 days after the execution of a transfer document, provide to the
successor employer the name, address, date of hire, and employment occupation classification
of each eligible employee.
new text end

new text begin (2) The successor employer shall maintain a preferential hiring list of eligible employees
identified by the incumbent employer under clause (1), and shall be required to hire from
that list for a period beginning upon the execution of the transfer document and continuing
for six months after the enterprise is open to the public under the successor employer.
new text end

new text begin (3) If the successor employer extends an offer of employment to an eligible employee,
the successor employer shall retain written verification of that offer for at least three years
from the date the offer was made. The verification shall include the name, address, date of
hire, and employment occupation classification of each eligible employee.
new text end

new text begin (b)(1) A successor employer shall retain each eligible employee hired pursuant to this
subdivision for no fewer than 90 days following the eligible employee's employment
commencement date. During this 90-day transition employment period, eligible employees
shall be employed under the terms and conditions established by the successor employer
or as required by law. The successor employer shall provide eligible employees with a
written offer of employment. This offer shall remain open for at least five business days
from the date of the offer. A successor employer may make simultaneous conditional offers
of employment to eligible employees, with a final offer of employment conditioned on
application of the priority system set forth in clause (2).
new text end

new text begin (2) If, within the period established in paragraph (a), clause (2), the successor employer
determines that it requires fewer eligible employees than were required by the incumbent
employer, the successor employer shall retain eligible employees by seniority within each
job classification to the extent that comparable job classifications exist.
new text end

new text begin (3) During the 90-day transition employment period, the successor employer shall not
discharge without cause an eligible employee retained pursuant to this subdivision.
new text end

new text begin (4) At the end of the 90-day transition employment period, the successor employer shall
perform a written performance evaluation for each eligible employee retained pursuant to
this section. If the eligible employee's performance during the 90-day transition employment
period is satisfactory, the successor employer shall consider offering the eligible employee
continued employment under the terms and conditions established by the successor employer
or as required by law. The successor employer shall retain a record of the written performance
evaluation for a period of no fewer than three years.
new text end

new text begin (c)(1) The incumbent employer shall post written notice of the change in control at the
location of the affected enterprise within five business days following the execution of the
transfer document. Notice shall remain posted during any closure of the enterprise and for
six months after the enterprise is open to the public under the successor employer.
new text end

new text begin (2) Notice shall include but not be limited to the name of the incumbent employer and
its contact information, the name of the successor employer and its contact information,
and the effective date of the change in control.
new text end

new text begin (3) Notice shall be posted in a conspicuous place at the enterprise so as to be readily
viewed by eligible employees, other employees, and applicants for employment.
new text end

new text begin Subd. 3. new text end

new text begin Employment protections. new text end

new text begin No employer shall refuse to employ, terminate,
reduce in compensation, or otherwise take any adverse action against any employee for
seeking to enforce their rights under sections 1 to 4, by any lawful means, for participating
in proceedings related to these sections, opposing any practice prescribed by these sections,
or otherwise asserting rights under these sections. This subdivision shall also apply to any
employee who mistakenly, but in good faith, alleges noncompliance with these sections.
new text end

new text begin Subd. 4. new text end

new text begin Collective bargaining rights. new text end

new text begin (a) All of the provisions in sections 1 to 4 may
be waived in a valid collective bargaining agreement, but only if the waiver is explicitly set
forth in that agreement in clear and unambiguous terms. Unilateral implementation of terms
and conditions of employment by either party to a collective bargaining relationship shall
not constitute or be permitted as a waiver of all or any part of the provisions of sections 1
to 4.
new text end

new text begin (b) Nothing in sections 1 to 4 limits the right of employees to bargain collectively with
their employers through representatives of their own choosing to establish retention or
rehiring conditions more favorable to the employees than those required by these sections.
new text end

Sec. 3.

new text begin ENFORCEMENT AND COMPLIANCE.
new text end

new text begin Subdivision 1. new text end

new text begin Enforcement. new text end

new text begin (a) An employee, including any eligible employee, may
file an action in the Minnesota District Court, or may file a complaint with the Department
of Labor and Industry, Labor Standards and Apprenticeship Division, against the employer,
or in the case of a violation of section 2, subdivision 2, incumbent employer or the successor
employer, for violations of section 2, and may be awarded any or all of the following, as
appropriate:
new text end

new text begin (1) hiring and reinstatement rights pursuant to section 2, with the 90-day transition
employment period not commencing until the eligible employee's employment
commencement date with the successor employer;
new text end

new text begin (2) front pay or back pay for each day during which the violation continues, which shall
be calculated at a rate of compensation not less than the highest of any of the following
rates:
new text end

new text begin (i) the average regular rate of pay received by the employee or eligible employee during
the last three years of that employee's employment in the same occupation classification;
new text end

new text begin (ii) the most recent regular rate received by the employee or eligible employee while
employed by the employer, incumbent employer, or successor employer; or
new text end

new text begin (iii) the regular rate received by the individual in the position during the time that the
employee or eligible employee should have been employed;
new text end

new text begin (3) value of the benefits the employee or eligible employee would have received under
the employer or successor employer's benefit plan; or
new text end

new text begin (4) in an action brought in the district court, a prevailing employee shall be awarded
reasonable attorneys' fees and costs.
new text end

new text begin (b) The Labor Standards and Apprenticeship Division shall investigate complaints filed
under this section, and if an employer, incumbent employer, or successor employer is found
to have violated section 2, the division shall determine and issue an award to an employee
pursuant to paragraph (a).
new text end

new text begin (c) No criminal penalties shall be imposed for a violation of section 2.
new text end

new text begin (d) This subdivision shall not be construed to limit a discharged employee or eligible
employee's right to pursue any other remedies available to an employee in law or equity.
new text end

new text begin Subd. 2. new text end

new text begin Compliance. new text end

new text begin The commissioner of labor and industry may issue a compliance
order under Minnesota Statutes, section 177.27, subdivision 4, requiring an employer to
comply with section 2.
new text end

new text begin Subd. 3. new text end

new text begin Interaction with local law. new text end

new text begin Nothing in this section shall prohibit a local
government agency from enacting ordinances that impose greater standards than, or establish
additional enforcement provisions to, those prescribed by this section.
new text end

Sec. 4.

new text begin CITATION.
new text end

new text begin Sections 1 to 4 may be cited as the "Emergency Rehire and Retention Law."
new text end

Sec. 5. new text begin APPROPRIATION.
new text end

new text begin $131,000 in fiscal year 2022 and $27,000 in fiscal year 2023 are appropriated from the
general fund to the commissioner of labor and industry to implement sections 1 to 4. The
base for this appropriation in fiscal year 2024 and after is $0.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2021.
new text end

Sec. 6. new text begin EFFECTIVE DATES.
new text end

new text begin Sections 1 to 4 are effective the day following final enactment and expire December 31,
2022.
new text end