2nd Engrossment - 93rd Legislature (2023 - 2024) Posted on 03/20/2023 03:43pm
A bill for an act
relating to nursing homes; establishing the 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 2022, section 177.27, subdivisions 4, 7;
proposing coding for new law in Minnesota Statutes, chapter 181.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
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Sections 181.211 to 181.217 shall be known as the "Minnesota Nursing Home Workforce
Standards Board Act."
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Minnesota Statutes 2022, section 177.27, subdivision 4, is amended to read:
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 177.28new text begin , 181.213, or 181.215new 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.
Minnesota Statutes 2022, section 177.27, subdivision 7, is amended to read:
If an employer is found by the commissioner to have
violated a section identified in subdivision 4, or any rule adopted under section 177.28new text begin ,
181.213, or 181.215new 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.
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The terms defined in this section apply to sections 181.211
to 181.217.
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"Board" means the Minnesota Nursing Home Workforce Standards
Board established under section 181.212.
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"Certified worker organization" means a
worker organization that is certified by the board to conduct nursing home worker trainings
under section 181.214.
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"Commissioner" means the commissioner of labor and industry.
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"Employer organization" means:
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(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
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(2) an entity that employers, who together employ a majority of nursing home workers
in Minnesota, have selected as a representative.
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"Nursing home" means a nursing home licensed under chapter
144A, or a boarding care home licensed under sections 144.50 to 144.56.
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"Nursing home employer" means an employer of
nursing home workers in a licensed, Medicaid-certified facility that is reimbursed under
chapter 256R.
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"Nursing home worker" means any worker who provides
services in a nursing home in Minnesota, including direct care staff, non-direct care staff,
and contractors, but excluding administrative staff, medical directors, nursing directors,
physicians, and individuals employed by a supplemental nursing services agency.
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"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 interfered with or dominated 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.
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The Minnesota Nursing Home
Workforce Standards Board is created with the powers and duties established by law. The
board is composed of the following voting members:
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(1) the commissioner of human services or a designee;
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(2) the commissioner of health or a designee;
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(3) the commissioner of labor and industry or a designee;
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(4) three members who represent nursing home employers or employer organizations,
appointed by the governor in accordance with section 15.066; and
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(5) three members who represent nursing home workers or worker organizations,
appointed by the governor in accordance with section 15.066.
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(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:
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(1) one member appointed under each of subdivision 1, clauses (4) and (5), shall serve
a two-year term;
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(2) one member appointed under each of subdivision 1, clauses (4) and (5), shall serve
a three-year term; and
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(3) one member appointed under each of subdivision 1, clauses (4) and (5), shall serve
a four-year term.
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(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), must not be
appointed to more than two consecutive terms.
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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.
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The commissioner may employ an executive director for the board
and other personnel to carry out duties of the board under sections 181.211 to 181.217.
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Compensation of board members is governed by section
15.0575.
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Meetings of the board are subject to chapter 13D.
The board is subject to chapter 13. The board shall comply with section 15.0597.
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The affirmative vote of five board members is required for the board
to take any action, including actions necessary to establish minimum nursing home
employment standards under section 181.213.
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To carry out its duties, the board shall hold public
hearings on, and conduct investigations into, working conditions in the nursing home industry
in accordance with section 181.213.
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The commissioner shall provide staff support to the
board. The support includes professional, legal, technical, and clerical staff necessary to
perform rulemaking and other duties assigned to the board. The commissioner shall supply
necessary office space and supplies to assist the board in its duties.
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The board shall establish operating procedures that
meet all state and federal antitrust requirements and may prohibit board member access to
data to meet the requirements of this subdivision.
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(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 about
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 and other working conditions for nursing
home workers. The board may not adopt standards that are less protective of or beneficial
to nursing home workers as any other applicable statute or rule or any standard previously
established by the board unless there is a determination by the board under subdivision 2
that existing standards exceed the operating payment rate and external fixed costs payment
rates included in the most recent budget and economic forecast completed under section
16A.103. In establishing standards under this section, the board must establish statewide
standards, and may adopt standards that apply to specific nursing home occupations.
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(b) The board must adopt rules establishing initial standards for wages for nursing home
workers no later than August 1, 2024. The board may use the authority in section 14.389
to adopt rules under this paragraph. The board shall consult with the department in the
development of these standards prior to beginning the rule adoption process.
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(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 occupational health and safety standards to the
commissioner. The commissioner 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,
presents enforceability challenges, is infeasible to implement, or is otherwise unlawful and
issues a written explanation of this determination.
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(a) 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. Except for standards exceeding
the threshold determined in paragraph (d), initial employment standards established by the
board are effective beginning January 1, 2025, and shall remain in effect until any subsequent
standards are adopted by rules.
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(b) The board must consider the following types of information in making determinations
that employment standards are reasonably necessary to protect the health and welfare of
nursing home workers:
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(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;
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(2) statements showing wage rates and benefits paid to nursing home workers in the
relevant geographic area and nursing home occupations;
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(3) signed collective bargaining agreements applicable to nursing home workers in the
relevant geographic area and nursing home occupations;
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(4) testimony and information from current and former nursing home workers, worker
organizations, nursing home employers, and employer organizations;
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(5) local minimum nursing home employment standards;
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(6) information submitted by or obtained from state and local government entities; and
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(7) any other information pertinent to establishing minimum nursing home employment
standards.
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(c) In considering wage and benefit increases, the board must determine the impact of
nursing home operating payment rates determined pursuant to section 256R.21, subdivision
3, and the employee benefits portion of the external fixed costs payment rate determined
pursuant to section 256R.25. If the board, in consultation with the commissioner of human
services, determines the operating payment rate and employee benefits portion of the external
fixed costs payment rate will increase to comply with the new employment standards, the
board shall report to the legislature the increase in funding needed to increase payment rates
to comply with the new employment standards and must make implementation of any new
nursing home employment standards contingent upon an appropriation, as determined by
sections 256R.21 and 256R.25, to fund the rate increase necessary to comply with the new
employment standards.
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(d) In evaluating the impact of the employment standards on payment rates determined
by sections 256R.21 and 256R.25, the board, in consultation with the commissioner of
human services, must consider the following:
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(1) the statewide average wage rates for employees pursuant to section 256R.10,
subdivision 5, and benefit rates pursuant to section 256R.02, subdivisions 18 and 22, as
determined by the annual Medicaid cost report used to determine the operating payment
rate and the employee benefits portion of the external fixed costs payment rate for the first
day of the calendar year immediately following the date the board has established minimum
wage and benefit levels;
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(2) compare the results of clause (1) to the operating payment rate and employee benefits
portion of the external fixed costs payment rate increase for the first day of the second
calendar year after the adoption of any nursing home employment standards included in the
most recent budget and economic forecast completed under section 16A.103; and
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(3) if the established nursing home employment standards result in an increase in costs
that exceed the operating payment rate and external fixed costs payment rate increase
included in the most recent budget and economic forecast completed under section 16A.103,
effective on the proposed implementation date of the new nursing home employment
standards, the board must determine the rates will need to be increased to meet the new
employment standards and the standards must not be effective until an appropriation sufficient
to cover the rate increase and federal approval of the rate increase is obtained.
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(e) The budget and economic forecasts completed under section 16A.103 shall not
assume an increase in payment rates determined under chapter 256R resulting from the new
employment standards until the board certifies the rates will need to be increased and the
legislature appropriates funding for the increase in payment rates.
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At least once every two years, the board shall:
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(1) conduct a full review of the adequacy of the minimum nursing home employment
standards previously established by the board; and
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(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 for minimum nursing
home employment standards using the expedited rulemaking process in section 14.389, as
appropriate to meet the purposes of sections 181.211 to 181.217.
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(a) 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.
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(b) Notwithstanding paragraph (a), 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 other state agency shall apply to nursing home workers and nursing home employers
if the rule adopted by the other state agency is adopted after the board's standard and the
rule adopted by the other state agency is more protective or beneficial than the board's
standard.
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(c) Notwithstanding paragraph (a), if the commissioner of health determines that a
standard established by the board in rule or recommended by the board conflicts with
requirements in federal regulations for nursing home certification or with state statutes or
rules governing licensure of nursing homes, the federal regulations or state nursing home
licensure statutes or rules shall take precedence, and the conflicting board standard or rule
shall not apply to nursing home workers or nursing home employers.
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Nothing in sections 181.211 to 181.217 shall be
construed to:
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(1) limit the rights of parties to a collective bargaining agreement to bargain and agree
with respect to nursing home employment standards; or
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(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.
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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 and provide a process for renewal of
certification upon the board's review of the worker organization's compliance with this
section. In adopting rules to establish 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:
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(1) effective, interactive training on the information required by this section; and
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(2) follow-up written materials and responses to inquiries from nursing home workers
in the languages in which nursing home workers are proficient.
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(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:
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(1) the applicable compensation and working conditions in the minimum standards or
local minimum standards established by the board;
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(2) the antiretaliation protections established in section 181.216;
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(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;
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(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;
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(5) other rights, duties, and obligations under sections 181.211 to 181.217;
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(6) any updates or changes to the information provided according to clauses (1) to (5)
since the most recent training session;
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(7) any other information the board deems appropriate to facilitate compliance with
sections 181.211 to 181.217; and
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(8) information on labor standards in other applicable local, state, and federal laws, rules,
and ordinances regarding nursing home working conditions or nursing home worker health
and safety.
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(b) Before establishing initial curriculum requirements, the board must hold at least one
public hearing to solicit input on the requirements.
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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.
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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.
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A certified worker organization:
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(1) must use a curriculum for its training sessions that meets requirements established
by the board;
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(2) must provide trainings that are interactive and conducted in the languages in which
the attending nursing home workers are proficient;
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(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;
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(4) must make itself reasonably available to respond to inquiries from nursing home
workers during and after training sessions; and
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(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.
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(a) A nursing home
employer must ensure that every two years 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. The nursing home employer must certify its compliance with this
subdivision to the board. A nursing home employer may, but is not required to, host training
sessions on the premises of the nursing home.
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(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).
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(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.
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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 and reimburse any travel expenses if the training sessions are
not held on the premises of the nursing home.
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(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 and 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:
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(1) posting a copy of the notice at each work site where nursing home workers work
and where the notice may be readily seen and reviewed by all nursing home workers working
at the site; or
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(2) providing a paper or electronic copy of the notice to all nursing home workers and
applicants for employment as a nursing home worker.
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(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.
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The board must adopt rules
under section 14.389 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.
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(a) A nursing home employer shall not discharge, discipline, penalize, interfere with,
threaten, restrain, coerce, or otherwise retaliate or discriminate against a nursing home
worker because the person has exercised or attempted to exercise rights protected under
this act, including but not limited to:
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(1) exercising any right afforded to the nursing home worker under sections 181.211 to
181.217;
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(2) participating in any process or proceeding under sections 181.211 to 181.217,
including but not limited to board hearings, board or department investigations, or other
related proceedings;
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(3) attending or participating in the training required by section 181.214;
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(4) informing another employer that a nursing home worker has engaged in activities
protected under sections 181.211 to 181.217; or
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(5) 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 for exercising or attempting to
exercise any right protected under this act.
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(b) A nursing home worker found to have experienced retaliation in violation of this
section shall be entitled to reinstatement to the worker's previous position, wages, benefits,
hours, and other conditions of employment.
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Except as provided
in section 181.213, subdivision 4, paragraph (b) or (c), the minimum wages and other
working conditions established by the board in rule as minimum nursing home employment
standards shall be the minimum wages and standard conditions of labor for nursing home
workers or a subgroup of nursing home workers as a matter of state law. Except as provided
in section 181.213, subdivision 4, paragraph (b) or (c), it shall be unlawful for a nursing
home employer to employ a nursing home worker for lower wages than those established
as the minimum nursing home employment standards or under any other working conditions
that violate the minimum nursing home employment standards.
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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.
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(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.
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(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 retaliation 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.
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(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.
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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, 2023.
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This section is effective the day following final enactment.
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