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Minnesota Legislature

Office of the Revisor of Statutes

HF 549

as introduced - 89th Legislature (2015 - 2016) Posted on 02/02/2015 01:49pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to employment; providing for earned sick and safe time; changing
Department of Labor and Industry enforcement powers; increasing fines and
penalties; requiring a report; authorizing rulemaking; amending Minnesota
Statutes 2014, sections 177.27, subdivisions 2, 4, 7; 177.28, subdivision 1;
181.032; 181.940; 181.942; 181.9436; 181.944; proposing coding for new law
in Minnesota Statutes, chapters 177; 181; repealing Minnesota Statutes 2014,
section 181.9413.

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

Section 1.

Minnesota Statutes 2014, section 177.27, subdivision 2, is amended to read:


Subd. 2.

Submission of records; penalty.

The commissioner may require the
employer of employees working in the state to submit to the commissioner photocopies,
certified copies, or, if necessary, the originals of employment records which the
commissioner deems necessary or appropriate. The records which may be required
include full and correct statements in writing, including sworn statements by the
employer, containing information relating to wages, hours, names, addresses, and any
other information pertaining to the employer's employees and the conditions of their
employment as the commissioner deems necessary or appropriate.

The commissioner may require the records to be submitted by certified mail delivery
or, if necessary, by personal delivery by the employer or a representative of the employer,
as authorized by the employer in writing.

The commissioner may fine the employer up to deleted text begin$1,000deleted text endnew text begin $2,000new text end for each failure to
submit or deliver records as required by this section. This penalty is in addition to any
penalties provided under section 177.32, subdivision 1. 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.

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, and 181.939 to deleted text begin181.943deleted text endnew text begin 181.9441new text end, or 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.

new text begin(a) new text endIf new text beginthe commissioner finds that new text endan employer deleted text beginis found
by the commissioner to have
deleted text endnew text begin hasnew text end 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, and compensatory damages,
less any amount actually paid to the employee by the employer, and for an additional
equal amount as liquidated damages. deleted text beginAny employer who is found by the commissioner to
have
deleted text endnew text begin In addition, the commissioner may order the employer to pay civil penalties of up to
$1,000 per violation. The commissioner must consider the factors described in section
14.045, subdivision 3, paragraph (a), when assessing these civil penalties.
new text end

new text begin (b) If the commissioner determines that an employer hasnew text end repeatedly or willfully
violated a section or sections identified in subdivision 4 deleted text beginshall 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
deleted text endnew text begin, the commissioner
must order the employer to pay a civil penalty of up to $10,000 per violation. The
commissioner must consider the factors described in section 14.045, including those
contained in subdivision 3, paragraph (b), when assessing these civil penalties
new text end.

new text begin (c)new text end 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 177.28, subdivision 1, is amended to read:


Subdivision 1.

General authority.

new text begin(a) new text endThe commissioner may adopt rules, including
definitions of terms, to carry out the purposes of sections 177.21 to 177.44, to prevent
the circumvention or evasion of those sections, and to safeguard the minimum wage and
overtime rates established by sections 177.24 and 177.25.

new text begin (b) The commissioner may adopt rules to carry out the purposes of sections 181.939
to 181.9441.
new text end

Sec. 5.

new text begin [177.36] REPORT TO LEGISLATURE.
new text end

new text begin (a) The commissioner must submit an annual report to the legislature, including to
the committee chair and minority lead of any relevant legislative committee. The report
must include, but is not limited to:
new text end

new text begin (1) a list of all violations of the statutory sections listed in section 177.27, subdivision
4, including the employer involved, and the nature of any violations; and
new text end

new text begin (2) an analysis of noncompliance with the statutory sections listed in section 177.27,
subdivision 4, including any patterns by employer, industry, or county.
new text end

new text begin (b) A report under this section must not include an employee's name or other
identifying information, any health or medical information regarding an employee or an
employee's family member, or any information pertaining to domestic abuse, sexual
assault, or stalking of an employee or an employee's family member.
new text end

Sec. 6.

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;

(5) a list of deductions made from the employee's pay;

(6) the net amount of pay after all deductions are made;

(7) the date on which the pay period ends; deleted text beginand
deleted text end

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

new text begin (9) the amount of earned sick and safe time, within the meaning of section 181.9441,
available for use by the employee
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. 7.

Minnesota Statutes 2014, section 181.940, is amended to read:


181.940 DEFINITIONS.

Subdivision 1.

Scope.

For the purposes of sections 181.940 to deleted text begin181.944deleted text endnew text begin 181.9441new text end,
the terms defined in this section have the meanings given them.

Subd. 2.

Employee.

"Employee" means deleted text begina person who performs services for hire
for an
deleted text endnew text begin an individual employed by annew text end employer deleted text beginfrom whom a leave is requested under
sections 181.940 to 181.944 for:
deleted text endnew text begin who has performed at least 680 hours of work for that
employer or who has worked for that employer for at least 17 weeks. Employee does not
mean an independent contractor.
new text end

deleted text begin (1) at least 12 months preceding the request; and
deleted text end

deleted text begin (2) for an average number of hours per week equal to one-half the full-time
equivalent position in the employee's job classification as defined by the employer's
personnel policies or practices or pursuant to the provisions of a collective bargaining
agreement, during the 12-month period immediately preceding the leave.
deleted text end

deleted text begin Employee includes all individuals employed at any site owned or operated by the
employer but does not include an independent contractor.
deleted text end

Subd. 3.

Employer.

"Employer" means a person or entity that employs deleted text begin21deleted text endnew text begin onenew text end or
more employees deleted text beginat at least one site, except that, for purposes of the school leave allowed
under section 181.9412, employer means a person or entity that employs one or more
employees in Minnesota
deleted text end. The term includes an individual, corporation, partnership,
association, nonprofit organization, group of persons, state, county, town, city, school
district, or other governmental subdivision.

Subd. 4.

Child.

"Child" means an individual under 18 years of age or an individual
under age 20 who is still attending secondary school.

new text begin Subd. 5. new text end

new text begin Family member. new text end

new text begin "Family member" means an employee's spouse, child,
adult child, step-child, foster child, ward, child for whom the employee is legal guardian,
regular member of the employee's household, parent, step-parent, sibling, grandchild,
step-grandchild, adopted grandchild, foster grandchild, mother-in-law, father-in-law,
or grandparent.
new text end

new text begin Subd. 6. new text end

new text begin Commissioner. new text end

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

Sec. 8.

Minnesota Statutes 2014, section 181.942, is amended to read:


181.942 REINSTATEMENT AFTER LEAVE.

Subdivision 1.

Comparable position.

(a) An employee returning from a leave of
absence under section 181.941 is entitled to return to employment in the employee's
former position or in a position of comparable duties, number of hours, and pay. An
employee returning from a leave of absence longer than one month must notify a
supervisor at least two weeks prior to return from leave. An employee returning from a
leave under section 181.9412 or deleted text begin181.94deleted text begin13deleted text enddeleted text endnew text begin 181.9441new text end is entitled to return to employment in
the employee's former position.

(b) If, during a leave under sections 181.940 to deleted text begin181.944deleted text endnew text begin 181.9441new text end, the employer
experiences a layoff and the employee would have lost a position had the employee not
been on leave, pursuant to the good faith operation of a bona fide layoff and recall system,
including a system under a collective bargaining agreement, the employee is not entitled to
reinstatement in the former or comparable position. In such circumstances, the employee
retains all rights under the layoff and recall system, including a system under a collective
bargaining agreement, as if the employee had not taken the leave.

Subd. 2.

Pay; benefits; on return.

An employee returning from a leave of absence
under sections 181.940 to deleted text begin181.944deleted text endnew text begin 181.9441new text end is entitled to return to employment at the
same rate of pay the employee had been receiving when the leave commenced, plus any
automatic adjustments in the employee's pay scale that occurred during leave period.
The employee returning from a leave is entitled to retain all accrued preleave benefits
of employment and seniority, as if there had been no interruption in service; provided
that nothing in sections 181.940 to deleted text begin181.944deleted text endnew text begin 181.9441new text end prevents the accrual of benefits or
seniority during the leave pursuant to a collective bargaining or other agreement between
the employer and employees.

Subd. 3.

Part-time return.

An employee, by agreement with the employer, may
return to work part time during the leave period without forfeiting the right to return to
employment at the end of the leave period, as provided in sections 181.940 to deleted text begin181.944deleted text endnew text begin
181.9441
new text end.

Sec. 9.

Minnesota Statutes 2014, section 181.9436, is amended to read:


181.9436 deleted text beginPOSTING OF LAWdeleted text endnew text begin NOTICE TO AFFECTED EMPLOYEESnew text end.

new text begin Subdivision 1. new text end

new text begin Poster. new text end

The Division of Labor Standards and Apprenticeship shall
develop, with the assistance of interested business and community organizations, an
educational poster stating employees' rights under sections 181.940 to deleted text begin181.9436deleted text endnew text begin 181.9441new text end.
The department shall make the poster available, upon request, to employers for posting on
the employer's premises.

new text begin Subd. 2. new text end

new text begin Grants to community organizations. new text end

new text begin The commissioner may make grants
to community organizations for the purpose of outreach to and education for employees
affected by sections 181.939 and 181.9441 regarding those employees' rights under those
sections. The community-based organizations must be selected based on their experience,
capacity, and relationships in high-violation industries. The work under such a grant may
include the creation and administration of a statewide worker hotline.
new text end

Sec. 10.

Minnesota Statutes 2014, section 181.944, is amended to read:


181.944 INDIVIDUAL REMEDIES.

In addition to any other remedies provided by law, a person injured by a violation
of sections 181.172, paragraph (a) or (d), and 181.939 to deleted text begin181.943deleted text endnew text begin 181.9441new text end may bring a
civil action to recover any and all damages recoverable at law, together with costs and
disbursements, including reasonable attorney's fees, and may receive injunctive and other
equitable relief as determined by a court.

Sec. 11.

new text begin [181.9441] EARNED SICK AND SAFE TIME.
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) "Domestic abuse" has the meaning given in section 518B.01.
new text end

new text begin (c) "Earned sick and safe time" means leave, including paid time off and other paid
leave systems, that are paid at the same hourly rate as an employee earns from employment.
new text end

new text begin (d) "Sexual assault" means an act that constitutes a violation under sections 609.342
to 609.3453, or 609.352.
new text end

new text begin (e) "Stalking" has the meaning given in section 609.749.
new text end

new text begin Subd. 2. new text end

new text begin Accrual of earned sick and safe time. new text end

new text begin (a) An employee accrues a
minimum of one hour of earned sick and safe time for every 30 hours worked. Except as
provided in paragraph (b), an employee may not accrue more than 72 hours of earned sick
and safe time in a calendar year unless the employer agrees to a higher amount.
new text end

new text begin (b) Employees of an employer that employs fewer than 21 employees may not
accrue more than 40 hours of earned sick and safe time in a calendar year unless the
employer agrees to a higher amount.
new text end

new text begin (c) Employees who are exempt from overtime requirements under United States
Code, title 29, section 213(a)(1), as amended through the effective date of this section, are
deemed to work 40 hours in each work week for purposes of accruing earned sick and safe
time, except that an employee whose normal work week is less than 40 hours will accrue
earned sick and safe time based upon the normal work week.
new text end

new text begin (d) Earned sick and safe time under this section begins to accrue at the
commencement of employment of the employee.
new text end

new text begin (e) Employees shall be entitled to use accrued earned sick and safe time beginning
90 calendar days following commencement of their employment. After 90 calendar days
of employment, employees may use earned sick and safe time as it is accrued.
new text end

new text begin Subd. 3. new text end

new text begin Use of earned sick and safe time. new text end

new text begin (a) An employee may use accrued
earned sick and safe time for:
new text end

new text begin (1) an employee's:
new text end

new text begin (i) mental or physical illness, injury, or health condition;
new text end

new text begin (ii) need for medical diagnosis, care, or treatment of a mental or physical illness,
injury, or health condition; or
new text end

new text begin (iii) need for preventive medical or health care;
new text end

new text begin (2) care of a family member:
new text end

new text begin (i) with a mental or physical illness, injury, or health condition;
new text end

new text begin (ii) who needs medical diagnosis, care, or treatment of a mental or physical illness,
injury, or health condition; or
new text end

new text begin (iii) who needs preventive medical or health care;
new text end

new text begin (3) absence due to domestic abuse, sexual assault, or stalking of the employee or
employee's family member, provided the absence is to:
new text end

new text begin (i) seek medical attention related to physical or psychological injury or disability
caused by domestic abuse, sexual assault, or stalking;
new text end

new text begin (ii) obtain services from a victim services organization;
new text end

new text begin (iii) obtain psychological or other counseling;
new text end

new text begin (iv) seek relocation due to domestic abuse, sexual assault, or stalking; or
new text end

new text begin (v) take legal action, including preparing for or participating in any civil or criminal
legal proceeding related to or resulting from domestic abuse, sexual assault, or stalking; and
new text end

new text begin (4) closure of the employee's place of business due to weather or other emergency,
or an employee's need to care for a child whose school or place of care has been closed
due to weather or other public emergency.
new text end

new text begin (b) An employer may require notice of the need for use of earned sick and safe time
as follows. If the need for use is foreseeable, an employer may require advance notice of
the intention to use earned sick and safe time, but in no case shall require more than seven
days' advance notice. If the need is not foreseeable, an employer may require an employee
to give notice of the need for earned sick and safe time as soon as practicable.
new text end

new text begin (c) When an employee uses earned sick and safe time for more than three consecutive
days, an employer may require reasonable documentation that the earned sick and safe
time is covered by paragraph (a). For earned sick and safe time under paragraph (a),
clauses (1) and (2), reasonable documentation may include a signed statement by a health
care professional indicating the need for use of earned sick and safe time. For earned sick
and safe time under paragraph (a), clause (3), an employer must accept a court record or
documentation signed by a volunteer for or employee of a victims services organization,
an attorney, a police officer, or an antiviolence counselor as reasonable documentation.
new text end

new text begin (d) An employer may not require, as a condition of an employee's using earned sick
and safe time, that the employee seek or find a replacement worker to cover the hours
during which the employee uses earned sick and safe time.
new text end

new text begin (e) Earned sick and safe time may be used in hourly increments or, at the discretion
of the employer, increments of less than one hour.
new text end

new text begin Subd. 4. new text end

new text begin Retaliation prohibited. new text end

new text begin An employer shall not retaliate against an
employee because the employee has requested earned sick and safe time, used earned sick
and safe time, or made a complaint or filed an action to enforce a right to earned sick
and safe time under this section.
new text end

new text begin Subd. 5. new text end

new text begin Notice and posting. new text end

new text begin (a) Employers shall give notice that employees are
entitled to earned sick and safe time, the amount of earned sick and safe time, and the
terms of its use under this section; that retaliation against employees who request or use
earned sick and safe time is prohibited; and that each employee has the right to file a
complaint or bring a civil action if earned sick and safe time is denied by the employer or
the employee is retaliated against for requesting or using earned sick and safe time.
new text end

new text begin (b) Employers may comply with this section by supplying employees with a notice
in English and other appropriate languages that contains the information required in
paragraph (a).
new text end

new text begin (c) Employers may comply with this section by displaying a poster in a conspicuous
and accessible place in each establishment where employees are employed that contains
all information required under paragraph (a).
new text end

new text begin (d) An employer that provides an employee handbook to its employees must include
in the handbook notice of employee rights and remedies under this section.
new text end

new text begin Subd. 6. new text end

new text begin Confidentiality and nondisclosure. new text end

new text begin If, in conjunction with this section, an
employer possesses health or medical information regarding an employee or an employee's
family member or information pertaining to domestic abuse, sexual assault, or stalking of
an employee or an employee's family member, the employer must treat such information
as confidential and not disclose the information except with permission of the employee.
new text end

new text begin Subd. 7. new text end

new text begin No effect on more generous sick and safe time policies. new text end

new text begin (a) Nothing in
this section shall be construed to discourage employers from adopting or retaining earned
sick and safe time 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) Nothing in this section shall be construed to limit the right of parties to a
collective bargaining agreement to bargain and agree with respect to earned sick and safe
time policies or to diminish the obligation of an employer to comply with any contract,
collective bargaining agreement, or any employment benefit program or plan that meets or
exceeds, and does not otherwise conflict with, the minimum standards and requirements
provided in this section.
new text end

new text begin (c) Employers who provide their employees earned sick and safe time under a paid
time off policy or other paid leave policy that meets or exceeds, and does not otherwise
conflict with, the minimum standards and requirements provided in this section are not
required to provide additional earned sick and safe time.
new text end

new text begin Subd. 8. new text end

new text begin Termination; separation; transfer. new text end

new text begin Nothing in this section may be
construed as requiring financial or other reimbursement to an employee from an employer
upon the employee's termination, resignation, retirement, or other separation from
employment for accrued earned sick and safe time that has not been used. If an employee
is transferred to a separate division, entity, or location, but remains employed by the same
employer, the employee is entitled to all earned sick and safe time accrued at the prior
division, entity, or location and is entitled to use all earned sick and safe time as provided
in this section. When there is a separation from employment and the employee is rehired
within 12 months of separation by the same employer, previously accrued earned sick
and safe time that had not been used must be reinstated. An employee is entitled to use
accrued earned sick and safe time and accrue additional earned sick and safe time at the
commencement of reemployment.
new text end

Sec. 12. new text beginREPEALER.
new text end

new text begin Minnesota Statutes 2014, section 181.9413, new text end new text begin is repealed.
new text end

Sec. 13. new text beginEFFECTIVE DATE.
new text end

new text begin Sections 1 to 12 are effective 180 days following final enactment.
new text end