SF 736

as introduced - 91st Legislature (2019 - 2020) Posted on 01/31/2019 04:08pm

A bill for an act
relating to employment; requiring fair scheduling of employee's hours; requiring
predictability pay; imposing civil penalties; amending Minnesota Statutes 2018,
sections 177.27, subdivisions 4, 7; 181.032; proposing coding for new law in
Minnesota Statutes, chapter 181.

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

Section 1. new text begin TITLE.
new text end

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

Sec. 2.

Minnesota Statutes 2018, 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), 181.275,
subdivision 2a, 181.722, 181.79, deleted text begin and deleted text end 181.939 to 181.943, deleted text begin or deleted text end new text begin and 181.99, and new text end with any rule
promulgated under section 177.28. The commissioner shall issue an order requiring an
employer to comply with sections 177.41 to 177.435 if the violation is repeated. For purposes
of this subdivision only, a violation is repeated if at any time during the two years that
preceded the date of violation, the commissioner issued an order to the employer for violation
of sections 177.41 to 177.435 and the order is final or the commissioner and the employer
have entered into a settlement agreement that required the employer to pay back wages that
were required by sections 177.41 to 177.435. The department shall serve the order upon the
employer or the employer's authorized representative in person or by certified mail at the
employer's place of business. An employer who wishes to contest the order must file written
notice of objection to the order with the commissioner within 15 calendar days after being
served with the order. A contested case proceeding must then be held in accordance with
sections 14.57 to 14.69. If, within 15 calendar days after being served with the order, the
employer fails to file a written notice of objection with the commissioner, the order becomes
a final order of the commissioner.

Sec. 3.

Minnesota Statutes 2018, section 177.27, subdivision 7, is amended to read:

Subd. 7.

Employer liability.

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

Sec. 4.

Minnesota Statutes 2018, section 181.032, is amended to read:

181.032 REQUIRED STATEMENT OF EARNINGS BY EMPLOYER.

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

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

(1) the name of the employee;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sec. 5.

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

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

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

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

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

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

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

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

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

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

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

new text begin (ii) housing;
new text end

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

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

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

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

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

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

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

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

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

Sec. 6.

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

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

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

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

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

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

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

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

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

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

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

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

new text begin Subd. 2. new text end

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

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

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

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

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

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

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

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

new text begin Subd. 3. new text end

new text begin Flexible working arrangements. new text end

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

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

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

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

new text begin Subd. 4. new text end

new text begin Predictability pay required. new text end

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

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

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

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

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

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

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

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

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

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

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

new text begin Subd. 5. new text end

new text begin Exception for suspended operations. new text end

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

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

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

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

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

new text begin Subd. 6. new text end

new text begin Right to rest. new text end

new text begin An employee has the right to decline work hours that occur: (1)
less than 11 hours after the end of the previous shift, or (2) during the 11 hours following
the end of a shift that spanned two days. An employer must pay an employee 1-1/2 times
the employee's regular rate of pay for any such hours worked.
new text end

new text begin Subd. 7. new text end

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

new text begin (a) An employer must not pay a
different regular rate of pay based on the number of hours an employee is scheduled to work
to employees whose jobs require equal skill, effort, and duties, and that are performed under
similar working conditions. An employer may pay different hourly wages based on other
reasons, such as seniority systems, merit, employee responsibilities, or systems that measure
earnings by quantity or quality of production.
new text end

new text begin (b) An employer must not condition eligibility for leave or time off based on the number
of hours an employee is scheduled to work for employees whose jobs require equal skill,
effort, and duties, and that are performed under similar working conditions. An employer
may prorate employee leave or time off based on the number of hours the employee works.
new text end

new text begin (c) An employer must not condition eligibility for raises or promotions based on the
number of hours an employee is scheduled to work for employees whose jobs require equal
skill, effort, and duties, and that are performed under similar working conditions. Employers
may condition eligibility for raises on other reasons, such as seniority systems, merit,
employee responsibilities, or the nature and amount of an employee's work experience.
new text end

new text begin Subd. 8. new text end

new text begin Access to hours. new text end

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

new text begin Subd. 9. new text end

new text begin Record-keeping requirements. new text end

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

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

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

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

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

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

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

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

new text begin Subd. 10. new text end

new text begin Employer retaliation. new text end

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

new text begin Subd. 11. new text end

new text begin Individual remedies. new text end

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

new text begin Subd. 12. new text end

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

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

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