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HF 1266

as introduced - 88th Legislature (2013 - 2014) Posted on 06/21/2017 11:01am

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A bill for an act
relating to employment; requiring employers to provide notice of business
closings and mass layoffs; requiring rulemaking; providing penalties; proposing
coding for new law as Minnesota Statutes, chapter 268B; repealing Minnesota
Statutes 2012, section 116L.976.

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

Section 1.

[268B.01] MINNESOTA WORKER ADJUSTMENT AND
RETRAINING NOTIFICATION ACT.

This chapter shall be known and may be cited as the "Minnesota Worker Adjustment
and Retraining Notification Act." This chapter is in addition to the requirements of the
federal Worker Adjustment and Retraining Notification Act, United States Code, title
29, sections 2101 to 2109.

Sec. 2.

[268B.02] DEFINITIONS.

Subdivision 1.

Definitions.

For the purposes of this chapter, the terms in this section
have the meanings given them.

Subd. 2.

Aggrieved employee.

"Aggrieved employee" means an employee who
has worked for the employer ordering the business closing or mass layoff and who, as
a result of the failure by the employer to comply with section 268B.03, did not receive
timely notice either directly or through the employee's representative.

Subd. 3.

Business closing.

"Business closing" means the permanent or temporary
shutdown of a single site of employment of one or more facilities or operating units that will
result in an employment loss for 25 or more employees, other than part-time employees.

Subd. 4.

Commissioner.

"Commissioner" means the commissioner of employment
and economic development.

Subd. 5.

Department.

"Department" means the Department of Employment and
Economic Development.

Subd. 6.

Employee.

"Employee" means a worker who may reasonably expect to
experience an employment loss as a consequence of a proposed business closing or mass
layoff by an employer.

Subd. 7.

Employer.

"Employer" means a person who employs 25 or more
employees, excluding part-time employees.

Subd. 8.

Employment loss.

"Employment loss" means an employment termination,
other than a discharge for cause, voluntary separation, or retirement; a layoff exceeding six
months; or a reduction in hours of more than 50 percent of work of individual employees
during each month of a six-month period. Employment loss does not include instances
when a business closing or mass layoff is the result of the relocation or consolidation of
part or all of the employer's business and, before the business closing or mass layoff,
the employer offers to transfer the employee to a different site of employment within a
reasonable commuting distance with no more than a six-month break in employment.

Subd. 9.

Mass layoff.

"Mass layoff" means a reduction in employment force that
is not the result of a business closing and results in an employment loss at a single site
of employment during any 30-day period of 25 or more employees, other than part-time
employees.

Subd. 10.

Part-time employee.

"Part-time employee" means an employee who is
employed for an average of fewer than 20 hours per week or an employee, including a
full-time employee, who has been employed for fewer than six of the 12 months preceding
the date on which notice is required.

Subd. 11.

Representative.

"Representative" means a representative of employees
under section 179.01, subdivision 5, or an exclusive representative of employees within
the meaning of section 9(a) of the federal National Labor Relations Act, United States
Code, title 29, section 151, et seq., and the federal Railway Labor Act, United States
Code, title 45, section 151, et seq.

Subd. 12.

Single site of employment.

"Single site of employment" means a single
location or a group of contiguous locations, such as a group of structures that form a
campus or business park or separate facilities across the street from each other.

Sec. 3.

[268B.03] NOTICE; REQUIREMENTS.

Subdivision 1.

30-day notice.

(a) An employer who plans a business closing or a
mass layoff must not order such action until the end of a 30-day period which begins
after the employer serves written notice of such action to the affected employees or
their representatives, the local unit of government in which the action occurs, and the
department. However, if an applicable collective bargaining agreement designates a
different notice period, the notice period in the collective bargaining agreement governs.

(b) An employer who has previously announced and carried out a short-term
mass layoff of six months or less which is extended beyond six months due to business
circumstances not reasonably foreseeable at the time of the initial mass layoff is required to
give notice when it becomes reasonably foreseeable that the extension is required. A mass
layoff extending beyond six months from the date the mass layoff commenced for any other
reason is treated as an employment loss from the date of commencement of the mass layoff.

(c) In the case of the sale of part or all of a business, the seller is responsible for
providing notice of any business closing or mass layoff which will take place up to and on
the effective date of the sale. The buyer is responsible for providing notice of any business
closing or mass layoff that will take place thereafter.

Subd. 2.

Notice requirements.

(a) Notice from the employer required by
subdivision 1 to the affected employees or their representatives, to the local unit of
government, and to the department must be in written form and must contain the following:

(1) the name and address of the employment site where the business closing or mass
layoff will occur and the name and telephone number of a company official to contact
for further information;

(2) a statement as to whether the planned action is expected to be permanent or
temporary and, if the entire business is to be closed, a statement to that effect;

(3) the expected date of the first employment loss and the anticipated schedule for
employment losses; and

(4) the job titles of positions to be affected and the names of the employees currently
holding the affected jobs. The notice to the local unit of government and to the department
must also include the address of each affected employee and whether the employee is
covered by a collective bargaining agreement. The local unit of government and the
department shall maintain the confidentiality of the names and addresses of employees.

(b) The notice may include additional information useful to the employees, such
as information about available dislocated worker assistance and, if the planned action is
expected to be temporary, the estimated duration, if known.

Subd. 3.

Notice delivery.

Any reasonable method of delivery to the affected
employees or their representatives, the local unit of government, and the department,
which is designed to ensure receipt of notice of at least 30 days before the planned action,
is acceptable. In the case of notification directly to affected employees, insertion of notice
into pay envelopes is a viable option.

Subd. 4.

Additional employer responsibility under federal WARN Act.

An
employer providing notice of a plant closing, substantial layoff, or relocation of operations
under the federal Worker Adjustment and Retraining Notification Act, United States Code,
title 29, sections 2101 to 2109, must, in addition to the requirements under that act, provide
notice in the same manner and to the same extent as notice is required by subdivision 2.

Sec. 4.

[268B.04] NOTICE; EXEMPTIONS, SPECIAL CIRCUMSTANCES.

Subdivision 1.

Strike or lockout.

If a business closing or mass layoff constitutes
a strike or lockout not intended to evade the requirements of this chapter, notice is not
required to be given by the employer. This chapter does not require an employer to serve
written notice when permanently replacing an employee who is deemed to be an economic
striker under the federal National Labor Relations Act. This chapter shall not be deemed
to validate or invalidate any judicial or administrative ruling relating to the hiring of
permanent replacements for economic strikers under the federal National Labor Relations
Act. If an employer hires temporary workers to replace employees during the course of a
strike or lockout and later terminates these temporary workers at the conclusion of the
strike or lockout, this chapter does not require an employer to serve written notice on the
terminated temporary workers.

Subd. 2.

Rolling layoffs.

(a) When affected employees will not be terminated on the
same date, the date of the first individual employment loss within the 30-day notice period
triggers the notice requirement. An employee's last day of employment is considered the
date of that employee's layoff. The first and subsequent groups of terminated employees
are entitled to a full 30-days' notice.

(b) An employer must give notice if the number of employment losses of two or
more actions in any 90-day period triggers the notice requirements in section 268B.03
for a business closing or a mass layoff. An employer is not required to give notice if
the number of employment losses from one action in a 30-day period does not meet the
requirements of section 268B.03. All employment losses in any 90-day period must be
aggregated to trigger the notice requirement unless the employer demonstrates to the
department that the employment losses during the 90-day period are the result of separate
and distinct actions and causes.

Subd. 3.

Extended notice.

(a) Additional notice is required if the date or schedule
of dates of a planned business closing or mass layoff is extended beyond the date or the
ending date of any period announced in the original notice.

(b) If the postponement is for less than 30 days, the additional notice must be given
as soon as possible to the affected employees or their representatives, the local unit of
government, and the department and must include reference to the earlier notice, the date
to which the planned action is postponed, and the reasons for the postponement. The notice
must be given in a manner which will provide the information to all affected employees.

(c) If the postponement is for more than 30 days, the additional notice must be
treated as new notice subject to the provisions of section 268B.03.

Subd. 4.

Faltering company.

(a) An exception to the 30-day notice applies to
business closings but not to mass layoffs if the following requirements are met:

(1) an employer must have been actively seeking capital or business at the time that
the 30-day notice would have been required by seeking financing or refinancing through
the arrangement of loans or the issuance of stocks, bonds, or other methods of internally
generated financing, or by seeking additional money, credit, or business through any other
commercially reasonable method. The employer must identify specific actions taken to
obtain capital or business;

(2) the employer must, at the time notice is actually given, provide a statement of
explanation for reducing the notice period in addition to the other notice requirements
in section 268B.03;

(3) there must have been a realistic opportunity to obtain the financing or business
sought;

(4) the financing or business sought must have been sufficient, if obtained, to have
enabled the employer to avoid or postpone the shutdown. The employer must be able to
objectively demonstrate that the amount of capital or the volume of new business sought
would have enabled the company to keep the facility, operating unit, or site open for a
reasonable period of time; and

(5) the employer reasonably and in good faith must have believed that giving the
required notice would have precluded the employer from obtaining the needed capital
or business. The employer must be able to objectively demonstrate that the employer
reasonably thought that a potential customer or source of financing would have been
unwilling to provide the new business or capital if notice had been given. This condition
may be satisfied if the employer can show that the financing or business source would
choose not to do business with a troubled company or with a company whose workforce
would be looking for other jobs.

(b) The exception under this subdivision must be narrowly construed.

Subd. 5.

Unforeseeable business circumstance.

An exception to the 30-day notice
applies to business closings and mass layoffs if the following requirements are met:

(1) business circumstances occurred that were not reasonably foreseeable at the time
that the 30-day notice would have been required;

(2) the employer must, at the time notice is actually given, provide a statement of
explanation for reducing the notice period in addition to the other notice requirements
in section 268B.03;

(3) an important indicator of a reasonably unforeseeable business circumstance is
that the circumstance is caused by some sudden, dramatic, and unexpected action or
condition outside the employer's control; and

(4) the employer must exercise commercially reasonable business judgment as
would a similarly situated employer in predicting the demands of the employer's particular
market. The employer is not required to accurately predict general economic conditions
that also may affect demand for products or services.

Subd. 6.

Natural disaster.

An exception to the 30-day notice applies to business
closings and mass layoffs if the following requirements are met:

(1) a natural disaster occurred at the time notice would have been required;

(2) the employer must, at the time notice is actually given, provide a statement of
explanation for reducing the notice period in addition to the other notice requirements
in section 268B.03;

(3) floods, earthquakes, droughts, storms, tornadoes, and similar effects of nature are
natural disasters under this subdivision;

(4) an employer must be able to demonstrate that the business closing or mass layoff
is a direct result of the natural disaster; and

(5) if a business closing or mass layoff occurs as an indirect result of a natural
disaster, this exception does not apply but the unforeseeable business circumstance
exception in subdivision 5 may be applicable.

Sec. 5.

[268B.05] ENFORCEMENT AND PENALTIES.

Subdivision 1.

Rulemaking.

The commissioner shall adopt rules regarding
enforcement of this chapter and investigations to determine whether an employer has
violated any provisions of this chapter. A determination by the department that a violation
has occurred shall be considered final agency action.

Subd. 2.

Civil penalty.

(a) If an employer is found by the commissioner to have
violated this chapter, any rule adopted under subdivision 1, or federal requirements under
the Worker Adjustment and Retraining Notification Act, United States Code, title 29,
sections 2101 to 2109, 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 affirmative steps that, in the judgment of the commissioner, will effectuate the
purposes of the section or rule violated.

(b) The commissioner shall order the employer to pay back pay and benefits to
each aggrieved employee in the same manner as an employer is liable to an employee
under United States Code, title 29, section 2104, except that the payments calculated
under United States Code, title 29, section 2104(a)(1)(A), shall be tripled for each day
an employer is found to have violated section 268B.03.

(c) An employer who violates section 268B.03 with respect to the department shall
be subject to a civil penalty of not more than $100 per aggrieved employee for each day
of the violation. An employer who is found by the commissioner to have repeatedly or
willfully violated section 268B.03 shall be subject to a civil penalty of $1,000 for each
violation for each employee. Any penalties collected by the department shall be deposited
in the general fund.

(d) In determining the amount of a civil penalty under this subdivision, the
appropriateness of the 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, 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 following:

(1) costs of services rendered by the attorney general, including reasonable attorney
fees;

(2) costs of services of private attorneys if engaged by the department and reasonable
attorney fees;

(3) costs of services of administrative law judges, court reporters, and expert
witnesses; and

(4) the cost of transcripts.

(e) 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 and payments.

Subd. 3.

Civil action.

(a) A person seeking to enforce liability for a violation of this
chapter, any rule adopted under subdivision 1, or federal requirements under the Worker
Adjustment and Retraining Notification Act, United States Code, title 29, sections 2101 to
2109, including an aggrieved employee, a representative, a local unit of government, or
the commissioner, may bring a civil action seeking redress and payment from an employer,
either for the person or for other persons similarly situated, or both, directly to district court.

(b) An employer who violates section 268B.03 shall be liable to each aggrieved
employee in the same manner as an employer is liable to an employee under United
States Code, title 29, section 2104, except that the payments calculated under United
States Code, title 29, section 2104(a)(1)(A), shall be tripled for each day an employer is
found to have violated section 268B.03.

(c) Any action brought under this subdivision may be filed in the district court of
the county where a violation is alleged to have been committed, a district court where the
respondent resides or has a principal place of business, or any other court of competent
jurisdiction. The action may be brought by one or more parties.

(d) In any action brought under this subdivision, the court shall order an employer
who is found to have committed a violation of this chapter, any rule adopted under
subdivision 1, or federal requirements under the Worker Adjustment and Retraining
Notification Act, United States Code, title 29, sections 2101 to 2109, to pay to the plaintiff
all costs, disbursements, witness fees, and reasonable attorney fees.

Subd. 4.

Exclusive remedy.

The penalties provided for in this section and under the
Worker Adjustment and Retraining Notification Act, United States Code, title 29, sections
2101 to 2109, shall be the exclusive remedies for any violation of this chapter. Under this
chapter, a court shall not have authority to enjoin a business closing or mass layoff.

Sec. 6. REPEALER.

Minnesota Statutes 2012, section 116L.976, is repealed.

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