HF 1139

as introduced - 89th Legislature (2015 - 2016) Posted on 02/23/2015 02:24pm

A bill for an act
relating to employment; requiring fair scheduling of employee's hours; requiring
predictability pay; imposing civil penalties; amending Minnesota Statutes 2014,
sections 177.27, subdivisions 4, 7; 181.032; proposing coding for new law in
Minnesota Statutes, chapter 181.

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

Section 1. new text begin TITLE.
new text end

new text begin This act shall be known as the "Fair Scheduling Act."
new text end

Sec. 2.

Minnesota Statutes 2014, section 177.27, subdivision 4, is amended to read:

Subd. 4.

Compliance orders.

The commissioner may issue an order requiring an
employer to comply with sections 177.21 to 177.435, 181.02, 181.03, 181.031, 181.032,
181.101, 181.11, 181.12, 181.13, 181.14, 181.145, 181.15, 181.172, paragraph (a) or (d),
181.275, subdivision 2a, 181.722, 181.79, deleted text begin and deleted text end 181.939 to 181.943, deleted text begin or deleted text end new text begin and 181.99, and new text end
with any rule promulgated under section 177.28. The commissioner shall issue an order
requiring an employer to comply with sections 177.41 to 177.435 if the violation is repeated.
For purposes of this subdivision only, a violation is repeated if at any time during the two
years that preceded the date of violation, the commissioner issued an order to the employer
for violation of sections 177.41 to 177.435 and the order is final or the commissioner and
the employer have entered into a settlement agreement that required the employer to pay
back wages that were required by sections 177.41 to 177.435. The department shall serve
the order upon the employer or the employer's authorized representative in person or by
certified mail at the employer's place of business. An employer who wishes to contest the
order must file written notice of objection to the order with the commissioner within 15
calendar days after being served with the order. A contested case proceeding must then be
held in accordance with sections 14.57 to 14.69. If, within 15 calendar days after being
served with the order, the employer fails to file a written notice of objection with the
commissioner, the order becomes a final order of the commissioner.

Sec. 3.

Minnesota Statutes 2014, section 177.27, subdivision 7, is amended to read:

Subd. 7.

Employer liability.

If an employer is found by the commissioner to have
violated a section identified in subdivision 4, or any rule adopted under section 177.28, and
the commissioner issues an order to comply, the commissioner shall order the employer to
cease and desist from engaging in the violative practice and to take such affirmative steps
that in the judgment of the commissioner will effectuate the purposes of the section or rule
violated. The commissioner shall order the employer to pay to the aggrieved parties back
pay, gratuities, new text begin predictability pay under section 181.99, new text end and compensatory damages, less
any amount actually paid to the employee by the employer, and for an additional deleted text begin equal
amount as liquidated damages deleted text end new text begin amount equal to twice the unpaid wages, overtime pay,
gratuities, and predictability pay under section 181.99 new text end . Any employer who is found by
the commissioner to have repeatedly or willfully violated a section or sections identified
in subdivision 4 shall be subject to a civil penalty of deleted text begin up to $1,000 deleted text end new text begin at least $5,000, but no
more than $10,000, new text end for each violation for each employee. In determining the amount of
a civil penalty under this subdivision, the appropriateness of such penalty to the size of
the employer's business and the gravity of the violation shall be considered. In addition,
the commissioner may order the employer to reimburse the department and the attorney
general for all appropriate litigation and hearing costs expended in preparation for and in
conducting the contested case proceeding, unless payment of costs would impose extreme
financial hardship on the employer. If the employer is able to establish extreme financial
hardship, then the commissioner may order the employer to pay a percentage of the total
costs that will not cause extreme financial hardship. Costs include but are not limited to
the costs of services rendered by the attorney general, private attorneys if engaged by the
department, administrative law judges, court reporters, and expert witnesses as well as
the cost of transcripts. Interest shall accrue on, and be added to, the unpaid balance of
a commissioner's order from the date the order is signed by the commissioner until it is
paid, at an annual rate provided in section 549.09, subdivision 1, paragraph (c). The
commissioner may establish escrow accounts for purposes of distributing damages.

Sec. 4.

Minnesota Statutes 2014, section 181.032, is amended to read:

181.032 REQUIRED STATEMENT OF EARNINGS BY EMPLOYER.

(a) At the end of each pay period, the employer shall provide each employee an
earnings statement, either in writing or by electronic means, covering that pay period. An
employer who chooses to provide an earnings statement by electronic means must provide
employee access to an employer-owned computer during an employee's regular working
hours to review and print earnings statements.

(b) The earnings statement may be in any form determined by the employer but
must include:

(1) the name of the employee;

(2) the hourly rate of pay (if applicable);

(3) the total number of hours worked by the employee unless exempt from chapter
177;

(4) the total amount of gross pay earned by the employee during that period;

new text begin (5) the total amount of overtime pay earned by the employee during that period;
new text end

new text begin (6) the total amount of gratuities earned by the employee during that period;
new text end

new text begin (7) the total amount of any additional compensation paid to the employee during that
period, including any predictability pay under section 181.99;
new text end

new text begin (8) the total amount of expense reimbursements paid to the employee during that
period;
new text end

deleted text begin (5) deleted text end new text begin (9) new text end a list of deductions made from the employee's pay;

deleted text begin (6) deleted text end new text begin (10) new text end the net amount of pay after all deductions are made;

deleted text begin (7) deleted text end new text begin (11) new text end the date on which the pay period ends; deleted text begin and
deleted text end

deleted text begin (8) deleted text end new text begin (12) new text end the legal name of the employer and the operating name of the employer if
different from the legal name deleted text begin . deleted text end new text begin ;
new text end

new text begin (13) the total amount of employer-provided leave used by the employee during
that pay period; and
new text end

new text begin (14) the total amount of employer-provided leave available for the employee to use.
new text end

(c) An employer must provide earnings statements to an employee in writing, rather
than by electronic means, if the employer has received at least 24 hours notice from an
employee that the employee would like to receive earnings statements in written form.
Once an employer has received notice from an employee that the employee would like to
receive earnings statements in written form, the employer must comply with that request
on an ongoing basis.

Sec. 5.

new text begin [181.915] EMPLOYER STATEMENT TO EMPLOYEES.
new text end

new text begin An employer must provide each newly hired employee, before the employee begins
the employee's duties, and each current employee, annually, with a written statement, in
English and in the principal language of the employee, a written statement describing the
terms and conditions of the employee's employment. The statement must include, but
is not limited to, the following:
new text end

new text begin (1) the full name, mailing address, and phone number of the employer;
new text end

new text begin (2) the federal and state tax identification numbers of each employer, but not
including Social Security numbers of employers who are individuals;
new text end

new text begin (3) the place or places of employment;
new text end

new text begin (4) the hours of work per day and number of days per week that the employee
will be required to work;
new text end

new text begin (5) the wages the employer will pay the employee; per hour, day, week, or other
measure; and the frequency and nature of payment of those wages;
new text end

new text begin (6) the anticipated period of employment;
new text end

new text begin (7) the circumstances and rate for which an employee will be paid a premium for
working in excess of a set number of hours per day, week, or month, or for working on
designated nights, weekends, or holidays;
new text end

new text begin (8) a description of any provision to the employee by the employer, how long such
provision will be provided by the employer, and any costs for such provision the employer
will require the employee to pay, including but not limited to:
new text end

new text begin (i) transportation to and from work;
new text end

new text begin (ii) housing;
new text end

new text begin (iii) health insurance or health care;
new text end

new text begin (iv) any paid or unpaid leave or holidays;
new text end

new text begin (v) pension or retirement benefits;
new text end

new text begin (vi) personal protective equipment required for the work;
new text end

new text begin (vii) workers' compensation policies, including information about the employer
insurance policy or policies, and rules regarding the reporting of accidents or injuries; and
new text end

new text begin (viii) unemployment compensation;
new text end

new text begin (9) the nature of the work to be performed by the employee;
new text end

new text begin (10) information regarding any existing strike, lockout, or concerted work stoppage,
slowdown, or interruption of operations at the place of employment; and
new text end

new text begin (11) information regarding any known local, state, or federal investigations into the
employer's health or safety practices over the prior five years, and the outcome of such
investigations, if known.
new text end

Sec. 6.

new text begin [181.99] NOTICE OF EMPLOYEE SCHEDULES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this section, the terms defined in
this subdivision have the meanings given them.
new text end

new text begin (b) "Commissioner" means the commissioner of labor and industry or authorized
designee or representative.
new text end

new text begin (c) "Employee" means an individual employed by an employer.
new text end

new text begin (d) "Employer" means a person or entity that employs one or more employees. The
term includes an individual, corporation, partnership, association, nonprofit organization,
group of persons, state, county, town, city, school district, or other governmental
subdivision.
new text end

new text begin (e) "Flexible working arrangement" means a change in an employee's terms and
conditions of employment with respect to work schedule, including, but not limited to, a
modified work schedule, changes in start or end times in a work schedule or work shift,
a predictable, stable work schedule, part-time employment, job sharing arrangements,
working from home, telecommuting, limitations on the employee's availability to work,
the location of the employee's worksite, reduction or change in work duties, or part-year
employment.
new text end

new text begin (f) "On-call shift" or "on-call hours" mean time that an employer requires an
employee to be available to work, and to contact the employer or its designee or wait to
be contacted by the employer or its designee to determine whether the employee must
report to work at that time.
new text end

new text begin (g) "Predictability pay" means payments to an employee, calculated on an hourly
basis at the employee's regular rate of pay, for applicable schedule changes pursuant to
subdivision 4. An employer must pay an employee predictability pay, when required by
this section, in addition to any wages earned for work performed by the employee. An
employer must pay predictability pay to an employee in the same pay period in which
it was incurred by the employer.
new text end

new text begin (h) "Shift" means the consecutive hours an employer requires an employee to work
or to be on call to work. Breaks totalling two hours or less shall not be considered an
interruption of consecutive hours.
new text end

new text begin (i) "Work week" means a fixed, consecutive seven-day period.
new text end

new text begin (j) "Work schedule" means all of an employee's regular and on-call shifts during
a work week.
new text end

new text begin Subd. 2. new text end

new text begin Advance notice of work schedules. new text end

new text begin (a) An employer must give each
employee the employee's individual initial work schedule, in writing, at least 21 days
before the first day of that work schedule. An employer must contact each employee to
notify the employee of any change in the employee's work schedule before the change
takes effect and must provide the employee with a revised written work schedule reflecting
any changes within 24 hours of making the change.
new text end

new text begin (b) On or before the beginning of an employee's employment, the employer must
provide the employee with a written work schedule for the employee's first 21 days of
employment.
new text end

new text begin (c) An employer may not require an employee to work hours not included in the
employee's initial written work schedule without consent in writing by the employee.
new text end

new text begin (d) An employer must post a written schedule that includes the shifts of all current
employees at a worksite at least 21 days before the start of each work week, whether or
not they are scheduled to work or be on call that week. The employer must update that
posted schedule within 24 hours of any change. The written schedule must be posted in a
place that is readily accessible and visible to all employees at a worksite.
new text end

new text begin (e) An employee's work week must begin on the same day of the week each week,
unless the employer provides 21 days advance written notice of a change in the start day
of the work week.
new text end

new text begin (f) An employee has the right to request a change in work schedule, request to
limit his or her availability to work particular hours, or otherwise provide input into the
employee's work schedule.
new text end

new text begin (g) An employer must not require an employee to seek or find a replacement
employee for any shifts or hours an employee is unable to work.
new text end

new text begin Subd. 3. new text end

new text begin Flexible working arrangements. new text end

new text begin (a) An employee has a right to request a
flexible working arrangement at any time. Such a request must be in writing.
new text end

new text begin (b) An employer must consider an employee's request for a flexible working
arrangement in good faith and engage in an interactive process with the employee to
consider the request and determine whether the request can be granted in a manner
consistent with the employer's business operations or legal or contractual obligations.
The employer must begin this interactive process within two days of receiving the
request. If information provided by the employee making a request for a flexible working
arrangement requires clarification, the employer must explain what further information is
needed and give the employee reasonable time to produce the information.
new text end

new text begin (c) After engaging in the interactive process, an employer must notify the employee
of its decision regarding a flexible working arrangement, in writing, within two days of its
last communication with the employee during the interactive process.
new text end

new text begin (d) If an employee requests a flexible working arrangement because of a serious health
condition of the employee, the employee's responsibilities as a caregiver, or the employee's
enrollment in a career-related educational or training program, or if a part-time employee
makes the request for a reason related to a second job, the employer must grant the request.
new text end

new text begin Subd. 4. new text end

new text begin Predictability pay required. new text end

new text begin (a) Within 21 days of, but not less than 24
hours from, the start of an employee's shift, an employer may do any of the following
provided the employer pays the affected employee one hour of predictability pay in
addition to wages earned for each changed shift, if any:
new text end

new text begin (1) subtract hours from a shift;
new text end

new text begin (2) add hours to a shift or add a shift;
new text end

new text begin (3) cancel a shift; or
new text end

new text begin (4) change the start or end time of a shift.
new text end

new text begin (b) Within 24 hours of the start of an employee's shift, an employer may do either of
the following provided the employer pays the affected employee one hour of predictability
pay in addition to wages earned for each changed shift:
new text end

new text begin (1) change the start or end time of a shift without changing the total number of
hours in the shift; or
new text end

new text begin (2) add hours to a shift.
new text end

new text begin (c) Whenever an employee is scheduled to work a shift, and the employer cancels
the shift or reduces the hours in the shift with less than 24 hours notice, the employer must
pay the employee the lesser of four hours of predictability pay or predictability pay equal
to the number of hours originally scheduled for the shift.
new text end

new text begin (d) An employer is not required to pay an employee any predictability pay under this
subdivision when a schedule change is the result of the employee's request, including,
but not limited to, a request to trade shifts with another employee, to use sick leave,
vacation time, or any other type of leave.
new text end

new text begin (e) An employer is not required to pay an employee any predictability pay under
this subdivision when a schedule change is the result of mutually agreed upon shift trade
among employees.
new text end

new text begin Subd. 5. new text end

new text begin Exception for suspended operations. new text end

new text begin The requirements of subdivisions 2
to 4 do not apply to an employer when that employer's operations are suspended:
new text end

new text begin (1) due to threats to employees or property;
new text end

new text begin (2) when civil authorities have recommended that work not begin or continue;
new text end

new text begin (3) due to failure of public utilities or sewer systems or because public utilities
fail to supply electricity, water, or gas; or
new text end

new text begin (4) due to a natural disaster or weather event.
new text end

new text begin Subd. 6. new text end

new text begin Right to rest. new text end

new text begin An employee has the right 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 a shift that spanned two days. An employer must pay an employee
1-1/2 times the employee's regular rate of pay for any such hours worked.
new text end

new text begin Subd. 7. new text end

new text begin No discrimination based on hours of work. new text end

new text begin (a) An employer must not
pay a different regular 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. An employer may pay different hourly
wages based on other reasons, such as seniority systems, merit, employee responsibilities,
or systems that measure earnings by quantity or quality of production.
new text end

new text begin (b) An employer must not condition eligibility for leave or time off 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.
An employer may prorate employee leave or time off based on the number of hours the
employee works.
new text end

new text begin (c) An employer must not condition eligibility for 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.
Employers may condition eligibility for raises on other reasons, such as seniority systems,
merit, employee responsibilities, or the nature and amount of an employee's work
experience.
new text end

new text begin Subd. 8. new text end

new text begin Access to hours. new text end

new text begin If an employer has additional hours of work available
in positions held by current employees, the employer must offer those hours to current
qualified employees before hiring new employees or contractors, including the use of
temporary services or staffing agencies.
new text end

new text begin Subd. 9. new text end

new text begin Record-keeping requirements. new text end

new text begin (a) An employer must keep an accurate
record of:
new text end

new text begin (1) the name, address, and occupation of each employee;
new text end

new text begin (2) the amount paid each pay period to each employee;
new text end

new text begin (3) the hours worked each day and each week by each employee; and
new text end

new text begin (4) each employee's initial work schedule and all subsequent revisions to that work
schedule.
new text end

new text begin (b) An employer must keep the records required by this subdivision for at least two
years after the entry date of the record. The records must be maintained at the place of
employment, at an office of the employer, or with a bank, accountant, or other central
location, and must be open to inspection and available upon request by the commissioner.
new text end

new text begin (c) An employer must allow an employee to inspect records required by this
subdivision and relating to that employee at a reasonable time and place.
new text end

new text begin (d) The commissioner may impose a civil penalty of up to $1,000 on an employer
for each failure to keep, furnish, or allow inspection of records under this subdivision.
new text end

new text begin Subd. 10. new text end

new text begin Employer retaliation. new text end

new text begin No employer shall discharge or take any other
adverse action against any person in retaliation for asserting any claim or right under this
section, for assisting any other person in doing so, or for informing any person about their
rights under this section. An employer taking any adverse action against a person within
one year of a person's engaging in the foregoing activities shall raise a presumption that
such action was retaliation, which may be rebutted by clear and convincing evidence that
such action was taken for other permissible reasons.
new text end

new text begin Subd. 11. new text end

new text begin Individual remedies. new text end

new text begin In addition to any other remedies available in law
or equity, an employee may bring a civil action seeking redress for a violation or violations
of this section directly to any court of competent jurisdiction. An employee may recover
any and all damages recoverable at law plus an additional amount equal to twice those
damages, together with costs and disbursements including reasonable attorney fees, and
may receive injunctive and other equitable relief as determined by a court.
new text end

new text begin Subd. 12. new text end

new text begin Encouragement of more generous policies. new text end

new text begin (a) Nothing in this section
shall be construed to discourage employers from adopting or retaining policies that meet
or exceed, and do not otherwise conflict with, the minimum standards and requirements
provided in this section.
new text end

new text begin (b) This section does not apply to employees covered under a collective bargaining
agreement with an employer.
new text end