HF 3405

as introduced - 92nd Legislature (2021 - 2022) Posted on 04/24/2022 04:12pm

A bill for an act
relating to nursing homes; establishing the Minnesota Nursing Home Workforce
Standards Board; establishing duties for the board; requiring training for nursing
home workers; prohibiting retaliation against nursing home workers; providing
for enforcement; authorizing rulemaking; authorizing civil actions by nursing
home workers; amending Minnesota Statutes 2020, section 177.27, subdivision
4; 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 may be cited as the Minnesota Nursing Home Workforce Standards Board Act.
new text end

Sec. 2.

Minnesota Statutes 2020, 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, 181.13, 181.14, 181.145, 181.15, 181.172, paragraph (a) or (d), new text begin 181.214
to 181.217, new text end 181.275, subdivision 2a, 181.722, 181.79, and 181.939 to 181.943, or with any
rule promulgated under section 177.28 new text begin or 181.213 new text end . 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 2020, 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 new text begin or
181.213 new text end , 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, and compensatory damages, less any amount actually
paid to the employee by the employer, and for an additional equal amount as liquidated
damages. 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 up to $1,000 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.

new text begin [181.211] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Application. new text end

new text begin The terms defined in this section apply to sections 181.211
to 181.217.
new text end

new text begin Subd. 2. new text end

new text begin Board. new text end

new text begin "Board" means the Minnesota Nursing Home Workforce Standards
Board established under section 181.212.
new text end

new text begin Subd. 3. new text end

new text begin Certified worker organization. new text end

new text begin "Certified worker organization" means a
worker organization that is certified by the board to conduct nursing home worker trainings
under section 181.214.
new text end

new text begin Subd. 4. new text end

new text begin Commissioner. new text end

new text begin "Commissioner" means the commissioner of labor and industry.
new text end

new text begin Subd. 5. new text end

new text begin Employer organization. new text end

new text begin "Employer organization" means:
new text end

new text begin (1) an organization that is exempt from federal income taxation under section 501(c)(6)
of the Internal Revenue Code and that represents nursing home employers; or
new text end

new text begin (2) an entity that employers, who together employ a majority of nursing home workers
in Minnesota, have selected as a representative.
new text end

new text begin Subd. 6. new text end

new text begin Nursing home. new text end

new text begin "Nursing home" means a nursing home licensed under chapter
144A, or a boarding care home licensed under sections 144.50 to 144.56.
new text end

new text begin Subd. 7. new text end

new text begin Nursing home employer. new text end

new text begin "Nursing home employer" means an employer of
nursing home workers.
new text end

new text begin Subd. 8. new text end

new text begin Nursing home worker. new text end

new text begin "Nursing home worker" means any worker who provides
services in a nursing home in Minnesota, including direct care staff, administrative staff,
and contractors.
new text end

new text begin Subd. 9. new text end

new text begin Retaliatory personnel action. new text end

new text begin "Retaliatory personnel action" means any form
of intimidation, threat, reprisal, harassment, discrimination, or adverse employment action,
including discipline, discharge, suspension, transfer, or reassignment to a lesser position in
terms of job classification, job security, or other condition of employment; reduction in pay
or hours or denial of additional hours; informing another employer that a nursing home
worker has engaged in activities protected under sections 181.211 to 181.217; or reporting
or threatening to report the actual or suspected citizenship or immigration status of a nursing
home worker, former nursing home worker, or family member of a nursing home worker
to a federal, state, or local agency.
new text end

new text begin Subd. 10. new text end

new text begin Worker organization. new text end

new text begin "Worker organization" means an organization that is
exempt from federal income taxation under section 501(c)(3), 501(c)(4), or 501(c)(5) of
the Internal Revenue Code, that is not dominated or controlled by any nursing home employer
within the meaning of United States Code, title 29, section 158a(2), and that has at least
five years of demonstrated experience engaging with and advocating for nursing home
workers.
new text end

Sec. 5.

new text begin [181.212] MINNESOTA NURSING HOME WORKFORCE STANDARDS
BOARD; ESTABLISHMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Board established; membership. new text end

new text begin The Minnesota Nursing Home
Workforce Standards Board is created with the powers and duties established by law. The
board is composed of the following members:
new text end

new text begin (1) the commissioner of human services or a designee;
new text end

new text begin (2) the commissioner of health or a designee;
new text end

new text begin (3) the commissioner of labor and industry or a designee;
new text end

new text begin (4) three members who represent nursing home employers or employer organizations,
appointed by the governor; and
new text end

new text begin (5) three members who represent nursing home workers or worker organizations,
appointed by the governor.
new text end

new text begin Subd. 2. new text end

new text begin Terms; vacancies. new text end

new text begin (a) Board members appointed under subdivision 1, clause
(4) or (5), shall serve four-year terms following the initial staggered-lot determination. The
initial terms of members appointed under subdivision 1, clauses (4) and (5), shall be
determined by lot by the secretary of state and shall be as follows:
new text end

new text begin (1) one member appointed under each of subdivision 1, clauses (4) and (5), shall serve
a two-year term;
new text end

new text begin (2) one member appointed under each of subdivision 1, clauses (4) and (5), shall serve
a three-year term; and
new text end

new text begin (3) one member appointed under each of subdivision 1, clauses (4) and (5), shall serve
a four-year term.
new text end

new text begin (b) For members appointed under subdivision 1, clause (4) or (5), the governor shall fill
vacancies occurring prior to the expiration of a member's term by appointment for the
unexpired term. A member appointed under subdivision 1, clause (4) or (5), shall not be
appointed to more than two consecutive four-year terms.
new text end

new text begin Subd. 3. new text end

new text begin Chairperson. new text end

new text begin The board shall elect a member by majority vote to serve as its
chairperson and shall determine the term to be served by the chairperson.
new text end

new text begin Subd. 4. new text end

new text begin Staffing. new text end

new text begin The board may employ an executive director and other personnel to
carry out duties of the board under sections 181.211 to 181.217.
new text end

new text begin Subd. 5. new text end

new text begin Compensation. new text end

new text begin Compensation of board members is governed by section
15.0575.
new text end

new text begin Subd. 6. new text end

new text begin Application of other laws. new text end

new text begin Meetings of the board are subject to chapter 13D.
The board is subject to chapter 13.
new text end

new text begin Subd. 7. new text end

new text begin Voting. new text end

new text begin The affirmative vote of five board members is required for the board
to take any action, including action to establish minimum nursing home employment
standards under section 181.213.
new text end

new text begin Subd. 8. new text end

new text begin Hearings and investigations. new text end

new text begin To carry out its duties, the board shall hold public
hearings on, and conduct investigations into, working conditions in the nursing home
industry.
new text end

Sec. 6.

new text begin [181.213] DUTIES OF THE BOARD; MINIMUM NURSING HOME
EMPLOYMENT STANDARDS.
new text end

new text begin Subdivision 1. new text end

new text begin Authority to establish minimum nursing home employment
standards. new text end

new text begin (a) The board must adopt rules establishing minimum nursing home employment
standards that are reasonably necessary and appropriate to protect the health and welfare
of nursing home workers, to ensure that nursing home workers are properly trained and
fully informed of their rights under sections 181.211 to 181.217, and to otherwise satisfy
the purposes of sections 181.211 to 181.217. Standards established by the board must
include, as appropriate, standards on compensation, working hours, and other working
conditions for nursing home workers. Any standards established by the board under this
section must be at least as protective of or beneficial to nursing home workers as any other
applicable statute or rule or any standard previously established by the board. In establishing
standards under this section, the board may establish statewide standards, standards that
apply to specific nursing home occupations, standards that apply to specific geographic
areas within the state, or any combination thereof.
new text end

new text begin (b) The board must adopt rules establishing initial standards for wages and working
hours for nursing home workers no later than August 1, 2023. The board may use the
authority in section 14.389 to adopt rules under this paragraph.
new text end

new text begin (c) To the extent that any minimum standards that the board finds are reasonably
necessary and appropriate to protect the health and welfare of nursing home workers fall
within the jurisdiction of chapter 182, the board shall not adopt rules establishing the
standards but shall instead recommend the standards to the commissioner of labor and
industry. The commissioner of labor and industry shall adopt nursing home health and safety
standards under section 182.655 as recommended by the board, unless the commissioner
determines that the recommended standard is outside the statutory authority of the
commissioner or is otherwise unlawful and issues a written explanation of this determination.
new text end

new text begin Subd. 2. new text end

new text begin Investigation of market conditions. new text end

new text begin The board must investigate market
conditions and the existing wages, benefits, and working conditions of nursing home workers
for specific geographic areas of the state and specific nursing home occupations. Based on
this information, the board must seek to adopt minimum nursing home employment standards
that meet or exceed existing industry conditions for a majority of nursing home workers in
the relevant geographic area and nursing home occupation. The board must consider the
following types of information in making wage rate determinations that are reasonably
necessary to protect the health and welfare of nursing home workers:
new text end

new text begin (1) wage rate and benefit data collected by or submitted to the board for nursing home
workers in the relevant geographic area and nursing home occupations;
new text end

new text begin (2) statements showing wage rates and benefits paid to nursing home workers in the
relevant geographic area and nursing home occupations;
new text end

new text begin (3) signed collective bargaining agreements applicable to nursing home workers in the
relevant geographic area and nursing home occupations;
new text end

new text begin (4) testimony and information from current and former nursing home workers, worker
organizations, nursing home employers, and employer organizations;
new text end

new text begin (5) local minimum nursing home employment standards;
new text end

new text begin (6) information submitted by or obtained from state and local government entities; and
new text end

new text begin (7) any other information pertinent to establishing minimum nursing home employment
standards.
new text end

new text begin Subd. 3. new text end

new text begin Review of standards. new text end

new text begin At least once every two years, the board shall:
new text end

new text begin (1) conduct a full review of the adequacy of the minimum nursing home employment
standards previously established by the board; and
new text end

new text begin (2) following that review, adopt new rules, amend or repeal existing rules, or make
recommendations to adopt new rules or amend or repeal existing rules, as appropriate to
meet the purposes of sections 181.211 to 181.217.
new text end

new text begin Subd. 4. new text end

new text begin Conflict. new text end

new text begin In the event of a conflict between a standard established by the board
in rule and a rule adopted by another state agency, the rule adopted by the board shall apply
to nursing home workers and nursing home employers, except where the conflicting rule
is issued after the board's standard, and the rule issued by the other state agency is more
protective or more beneficial, then the subsequent more protective or more beneficial rule
shall apply to nursing home workers and nursing home employers.
new text end

new text begin Subd. 5. new text end

new text begin Effect on other agreements. new text end

new text begin Nothing in sections 181.211 to 181.217 shall be
construed to:
new text end

new text begin (1) limit the rights of parties to a collective bargaining agreement to bargain and agree
with respect to nursing home employment standards; or
new text end

new text begin (2) diminish the obligation of a nursing home employer to comply with any contract,
collective bargaining agreement, or employment benefit program or plan that meets or
exceeds, and does not conflict with, the minimum standards and requirements in sections
181.211 to 181.217 or established by the board.
new text end

Sec. 7.

new text begin [181.214] DUTIES OF THE BOARD; TRAINING FOR NURSING HOME
WORKERS.
new text end

new text begin Subdivision 1. new text end

new text begin Certification of worker organizations. new text end

new text begin The board shall certify worker
organizations that it finds are qualified to provide training to nursing home workers according
to this section. The board shall by rule establish certification criteria that a worker
organization must meet in order to be certified. In adopting rules to establish initial
certification criteria under this subdivision, the board may use the authority in section 14.389.
The criteria must ensure that a worker organization, if certified, is able to provide:
new text end

new text begin (1) effective, interactive training on the information required by this section; and
new text end

new text begin (2) follow-up written materials and responses to inquiries from nursing home workers
in the languages in which nursing home workers are proficient.
new text end

new text begin Subd. 2. new text end

new text begin Curriculum. new text end

new text begin (a) The board shall establish requirements for the curriculum for
the nursing home worker training required by this section. A curriculum must at least provide
the following information to nursing home workers:
new text end

new text begin (1) the applicable compensation, working hours, and working conditions in the minimum
standards or local minimum standards established by the board;
new text end

new text begin (2) the antiretaliation protections established in section 181.216;
new text end

new text begin (3) information on how to enforce sections 181.211 to 181.217 and on how to report
violations of sections 181.211 to 181.217 or of standards established by the board, including
contact information for the Department of Labor and Industry, the board, and any local
enforcement agencies, and information on the remedies available for violations;
new text end

new text begin (4) the purposes and functions of the board and information on upcoming hearings,
investigations, or other opportunities for nursing home workers to become involved in board
proceedings;
new text end

new text begin (5) other rights, duties, and obligations under sections 181.211 to 181.217;
new text end

new text begin (6) any updates or changes to the information provided according to clauses (1) to (5)
since the most recent training session;
new text end

new text begin (7) any other information the board deems appropriate to facilitate compliance with
sections 181.211 to 181.217; and
new text end

new text begin (8) information on other applicable local, state, and federal laws, rules, and ordinances
regarding nursing home working conditions or nursing home worker health and safety.
new text end

new text begin (b) Before establishing initial curriculum requirements, the board must hold at least one
public hearing to solicit input on the requirements.
new text end

new text begin Subd. 3. new text end

new text begin Topics covered in training session. new text end

new text begin A certified worker organization is not
required to cover all of the topics listed in subdivision 2 in a single training session. A
curriculum used by a certified worker organization may provide instruction on each topic
listed in subdivision 2 over the course of up to three training sessions.
new text end

new text begin Subd. 4. new text end

new text begin Annual review of curriculum requirements. new text end

new text begin The board must review the
adequacy of its curriculum requirements at least annually and must revise the requirements
as appropriate to meet the purposes of sections 181.211 to 181.217. As part of each annual
review of the curriculum requirements, the board must hold at least one public hearing to
solicit input on the requirements.
new text end

new text begin Subd. 5. new text end

new text begin Duties of certified worker organizations. new text end

new text begin A certified worker organization:
new text end

new text begin (1) must use a curriculum for its training sessions that meets requirements established
by the board;
new text end

new text begin (2) must provide trainings that are interactive and conducted in the languages in which
the attending nursing home workers are proficient;
new text end

new text begin (3) must, at the end of each training session, provide attending nursing home workers
with follow-up written or electronic materials on the topics covered in the training session,
in order to fully inform nursing home workers of their rights and opportunities under sections
181.211 to 181.217 and other applicable laws, rules, and ordinances governing nursing
home working conditions or worker health and safety;
new text end

new text begin (4) must make itself reasonably available to respond to inquiries from nursing home
workers during and after training sessions; and
new text end

new text begin (5) may conduct surveys of nursing home workers who attend a training session to assess
the effectiveness of the training session and industry compliance with sections 181.211 to
181.217 and other applicable laws, rules, and ordinances governing nursing home working
conditions or worker health and safety.
new text end

new text begin Subd. 6. new text end

new text begin Nursing home employer duties regarding training. new text end

new text begin (a) A nursing home
employer must ensure, and must provide proof to the commissioner of labor and industry,
that every six months each of its nursing home workers completes one hour of training that
meets the requirements of this section and is provided by a certified worker organization.
A nursing home employer may, but is not required to, host training sessions on the premises
of the nursing home.
new text end

new text begin (b) If requested by a certified worker organization, a nursing home employer must, after
a training session provided by the certified worker organization, provide the certified worker
organization with the names and contact information of the nursing home workers who
attended the training session, unless a nursing home worker opts out according to paragraph
(c).
new text end

new text begin (c) A nursing home worker may opt out of having the worker's nursing home employer
provide the worker's name and contact information to a certified worker organization that
provided a training session attended by the worker by submitting a written statement to that
effect to the nursing home employer.
new text end

new text begin Subd. 7. new text end

new text begin Compensation. new text end

new text begin A nursing home employer must compensate its nursing home
workers at their regular hourly rate of wages and benefits for each hour of training completed
as required by this section.
new text end

Sec. 8.

new text begin [181.215] REQUIRED NOTICES.
new text end

new text begin Subdivision 1. new text end

new text begin Provision of notice. new text end

new text begin (a) Nursing home employers must provide notices
informing nursing home workers of the rights and obligations provided under sections
181.211 to 181.217 of applicable minimum nursing home employment standards or local
minimum standards and that for assistance and information, nursing home workers should
contact the Department of Labor and Industry. A nursing home employer must provide
notice using the same means that the nursing home employer uses to provide other
work-related notices to nursing home workers. Provision of notice must be at least as
conspicuous as:
new text end

new text begin (1) posting a copy of the notice at each work site where nursing home workers work
and where the notice may be readily observed and reviewed by all nursing home workers
working at the site; or
new text end

new text begin (2) providing a paper or electronic copy of the notice to all nursing home workers and
applicants for employment as a nursing home worker.
new text end

new text begin (b) The notice required by this subdivision must include text provided by the board that
informs nursing home workers that they may request the notice to be provided in a particular
language. The nursing home employer must provide the notice in the language requested
by the nursing home worker. The board must assist nursing home employers in translating
the notice in the languages requested by their nursing home workers.
new text end

new text begin Subd. 2. new text end

new text begin Minimum content and posting requirements. new text end

new text begin The board must adopt rules
specifying the minimum content and posting requirements for the notices required in
subdivision 1. The board must make available to nursing home employers a template or
sample notice that satisfies the requirements of this section and rules adopted under this
section.
new text end

Sec. 9.

new text begin [181.216] RETALIATION ON CERTAIN GROUNDS PROHIBITED.
new text end

new text begin A nursing home employer must not retaliate against a nursing home worker, including
taking retaliatory personnel action, for:
new text end

new text begin (1) exercising any right afforded to the nursing home worker under sections 181.211 to
181.217;
new text end

new text begin (2) participating in any process or proceeding under sections 181.211 to 181.217,
including but not limited to board hearings, investigations, or other proceedings; or
new text end

new text begin (3) attending or participating in the training required by section 181.214.
new text end

Sec. 10.

new text begin [181.217] ENFORCEMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Minimum nursing home employment standards. new text end

new text begin The minimum wages,
maximum hours of work, and other working conditions established by the board in rule as
minimum nursing home employment standards shall be the minimum wages, maximum
hours of work, and standard conditions of labor for nursing home workers or a subgroup
of nursing home workers as a matter of state law. It shall be unlawful for a nursing home
employer to employ a nursing home worker for lower wages or for longer hours than those
established as the minimum nursing home employment standards or under any other working
conditions that violate the minimum nursing home employment standards.
new text end

new text begin Subd. 2. new text end

new text begin Investigations. new text end

new text begin The commissioner may investigate possible violations of sections
181.214 to 181.217 or of the minimum nursing home employment standards established by
the board whenever it has cause to believe that a violation has occurred, either on the basis
of a report of a suspected violation or on the basis of any other credible information, including
violations found during the course of an investigation.
new text end

new text begin Subd. 3. new text end

new text begin Enforcement authority. new text end

new text begin The Department of Labor and Industry shall enforce
sections 181.214 to 181.217 and compliance with the minimum nursing home employment
standards established by the board according to the authority in section 177.27, subdivisions
4 and 7.
new text end

new text begin Subd. 4. new text end

new text begin Civil action by nursing home worker. new text end

new text begin (a) One or more nursing home workers
may bring a civil action in district court seeking redress for violations of sections 181.211
to 181.217 or of any applicable minimum nursing home employment standards or local
minimum nursing home employment standards. Such an action may be filed in the district
court of the county where a violation or violations are alleged to have been committed or
where the nursing home employer resides, or in any other court of competent jurisdiction,
and may represent a class of similarly situated nursing home workers.
new text end

new text begin (b) Upon a finding of one or more violations, a nursing home employer shall be liable
to each nursing home worker for the full amount of the wages, benefits, and overtime
compensation, less any amount the nursing home employer is able to establish was actually
paid to each nursing home worker and for an additional equal amount as liquidated damages.
In an action under this subdivision, nursing home workers may seek damages and other
appropriate relief provided by section 177.27, subdivision 7, or otherwise provided by law,
including reasonable costs, disbursements, witness fees, and attorney fees. A court may also
issue an order requiring compliance with sections 181.211 to 181.217 or with the applicable
minimum nursing home employment standards or local minimum nursing home employment
standards. A nursing home worker found to have experienced a retaliatory personnel action
in violation of section 181.216 shall be entitled to reinstatement to the worker's previous
position, wages, benefits, hours, and other conditions of employment.
new text end

new text begin (c) An agreement between a nursing home employer and nursing home worker or labor
union that fails to meet the minimum standards and requirements in sections 181.211 to
181.217 or established by the board is not a defense to an action brought under this
subdivision.
new text end

Sec. 11. new text begin INITIAL APPOINTMENTS.
new text end

new text begin The governor shall make initial appointments to the Minnesota Nursing Home Workforce
Standards Board under Minnesota Statutes, section 181.212, no later than August 1, 2022.
new text end