SF 3693

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to labor; modifying provisions relating to employment; adding
provisions to the Fair Labor Standards Act; providing penalties; amending
Minnesota Statutes 2006, sections 177.23, subdivision 7; 177.27, subdivision 3,
by adding a subdivision; 177.32, by adding a subdivision; Minnesota Statutes
2007 Supplement, section 177.27, subdivision 8; proposing coding for new law
in Minnesota Statutes, chapter 177; repealing Minnesota Statutes 2006, section
177.32, subdivision 2.

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

Section 1.

Minnesota Statutes 2006, section 177.23, subdivision 7, is amended to read:

Subd. 7.

Employee.

new text begin (a) new text end "Employee" means any individual employed by an
employer but does not include:

(1) two or fewer specified individuals employed at any given time in agriculture on a
farming unit or operation who are paid a salary;

deleted text begin (2) any individual employed in agriculture on a farming unit or operation who is
paid a salary greater than the individual would be paid if the individual worked 48 hours at
the state minimum wage plus 17 hours at 1-1/2 times the state minimum wage per week;
deleted text end

deleted text begin (3) deleted text end new text begin (2) new text end an individual under 18 who is employed in agriculture on a farm to perform
services other than corn detasseling or hand field work when one or both of that minor
hand field worker's parents or physical custodians are also hand field workers;

deleted text begin (4) deleted text end new text begin (3) new text end for purposes of section 177.24, an individual under 18 who is employed
as a corn detasseler;

deleted text begin (5) deleted text end new text begin (4) new text end any staff member employed on a seasonal basis by an organization for work
in an organized resident or day camp operating under a permit issued under section 144.72;

deleted text begin (6) deleted text end new text begin (5) new text end any individual employed in a bona fide executive, administrative, or
professional capacity, or a salesperson who conducts no more than 20 percent of sales
on the premises of the employer;

deleted text begin (7) deleted text end new text begin (6) new text end any individual who renders service gratuitously for a nonprofit organization;

deleted text begin (8) deleted text end new text begin (7) new text end any individual who serves as an elected official for a political subdivision or
who serves on any governmental board, commission, committee or other similar body, or
who renders service gratuitously for a political subdivision;

deleted text begin (9) deleted text end new text begin (8) new text end any individual employed by a political subdivision to provide police or fire
protection services or employed by an entity whose principal purpose is to provide police
or fire protection services to a political subdivision;

deleted text begin (10) deleted text end new text begin (9) new text end any individual employed by a political subdivision who is ineligible for
membership in the Public Employees Retirement Association under section 353.01,
subdivision 2b, clause (1), (2), (4), or (9);

deleted text begin (11) deleted text end new text begin (10) new text end any driver employed by an employer engaged in the business of operating
taxicabs;

deleted text begin (12) deleted text end new text begin (11) new text end any individual engaged in babysitting as a sole practitioner;

deleted text begin (13) deleted text end new text begin (12) new text end for the purpose of section 177.25, any individual employed on a seasonal
basis in a carnival, circus, fair, or ski facility;

deleted text begin (14) deleted text end new text begin (13) new text end any individual under 18 working less than 20 hours per workweek for a
municipality as part of a recreational program;

deleted text begin (15) deleted text end new text begin (14) new text end any individual employed by the state as a natural resource manager 1, 2, or
3 (conservation officer);

deleted text begin (16) deleted text end new text begin (15) new text end any individual in a position for which the United States Department of
Transportation has power to establish qualifications and maximum hours of service under
United States Code, title 49, section 31502;

deleted text begin (17) deleted text end new text begin (16) new text end any individual employed as a seafarer. The term "seafarer" means a
master of a vessel or any person subject to the authority, direction, and control of the
master who is exempt from federal overtime standards under United States Code, title 29,
section 213(b)(6), including but not limited to pilots, sailors, engineers, radio operators,
firefighters, security guards, pursers, surgeons, cooks, and stewards;

deleted text begin (18) deleted text end new text begin (17) new text end any individual employed by a county in a single-family residence owned
by a county home school as authorized under section 260B.060 if the residence is
an extension facility of that county home school, and if the individual as part of the
employment duties resides at the residence for the purpose of supervising children as
defined by section 260C.007, subdivision 4; or

deleted text begin (19) deleted text end new text begin (18) new text end nuns, monks, priests, lay brothers, lay sisters, ministers, deacons, and other
members of religious orders who serve pursuant to their religious obligations in schools,
hospitals, and other nonprofit institutions operated by the church or religious order.

new text begin (b) Whether a person is an independent contractor or an employee must be
determined according to the standards of the federal Fair Labor Standards Act, United
States Code, title 29, sections 201 to 219, but the burden of proof is on the party for whom
the work is performed to show independent contractor status by clear and convincing
evidence.
new text end

Sec. 2.

new text begin [177.258] FAILURE TO WITHHOLD STATE TAXES.
new text end

new text begin In addition to any other penalties, each time that an employer fails to withhold taxes
from an employee's wages and transfer the funds to the commissioner of revenue, the
commissioner of revenue shall assess a $500 fine against the employer.
new text end

Sec. 3.

Minnesota Statutes 2006, section 177.27, subdivision 3, is amended to read:

Subd. 3.

Adequacy of records.

If the records maintained by the employer do
not provide sufficient information to determine the exact amount of back wages due
an employee, the commissioner may make a determination of wages due based on
available evidence and mediate a settlement with the employer. new text begin Where an employer has
not maintained records containing the names, hours of employment, regular rate of pay,
and gross wages for each employee, that failure raises a rebuttable presumption both in
administrative and civil actions that the employer did not pay the required minimum
wage rate.
new text end

Sec. 4.

Minnesota Statutes 2006, section 177.27, is amended by adding a subdivision
to read:

new text begin Subd. 6a. new text end

new text begin Complaints. new text end

new text begin Any person may file a complaint with the commissioner that
the wages paid to an employee for whom a prevailing wage rate has been established are
less than the prevailing wage rate. The commissioner shall investigate the matter and take
any steps necessary to enforce the payment of the prevailing wage rate. The commissioner
may review records regarding all of an employer's employees in order to protect the
identity of an employee identified in the complaint and to determine whether a pattern
of violations has occurred. The commissioner shall disclose a complaining employee's
name only if it is necessary to further investigate a complaint allegation and only if the
employee has consented in writing to the disclosure. The statute of limitations for a civil
action against the employer must be tolled during the investigation.
new text end

Sec. 5.

Minnesota Statutes 2007 Supplement, section 177.27, subdivision 8, is
amended to read:

Subd. 8.

Court actions; suits brought by private parties.

An employee new text begin or any
other person injured by a violation of this chapter new text end may bring a civil action seeking redress
for a violation or violations of sections 177.21 to 177.44 directly to district court. An
employer who pays an employee less than the wages and overtime compensation to which
the employee is entitled under sections 177.21 to 177.44 is liable to the employee for the
full amount of the wages, gratuities, and overtime compensation, less any amount the
employer is able to establish was actually paid to the employee and for deleted text begin an additional equal deleted text end
new text begin twice that new text end amount as liquidated damages. In addition, in an action under this subdivision
the employee may seek damages and other appropriate relief provided by subdivision 7
and otherwise provided by law. An agreement between the employee and the employer to
work for less than the applicable wage is not a defense to the action.

Sec. 6.

new text begin [177.315] INTIMIDATION OF WITNESS; PENALTY.
new text end

new text begin (a) An employer or other person must not discharge or in any other manner
discriminate or retaliate against an employee or other person for: (1) exercising any right
under this chapter or any rules adopted under it; (2) providing assistance to an employee
or information regarding the employee; or (3) testifying or planning to testify in any
investigation or proceeding regarding the employee.
new text end

new text begin (b) Taking adverse action against a person within 90 days of a person's engaging
in the activities in paragraph (a) raises a presumption that the action was retaliation,
which may be rebutted by clear and convincing evidence that the action was taken for
other permissible reasons. A civil action to enforce this section may be maintained in any
court of competent jurisdiction by the state or by any party injured by a violation of this
section. An employer who retaliates against an employee or other person in violation of
this section must pay $1,000 for each week of violation or until legal judgment is final.
new text end

Sec. 7.

new text begin [177.316] TRANSPORTATION OF PROHIBITED GOODS; PENALTIES.
new text end

new text begin A person who violates the prohibited goods transportation provision of United
States Code, title 29, section 215(a)(1), is, in addition to any penalties under that section,
subject to an action for injunctive relief by the commissioner or an injured party to stop
the violation. A prevailing plaintiff shall recover the costs of the suit and reasonable
attorney fees.
new text end

Sec. 8.

new text begin [177.317] LIABILITY OF SHAREHOLDERS FOR WAGES DUE TO
EMPLOYEES.
new text end

new text begin The ten largest shareholders of a corporation are jointly and severally personally
liable for all debts, wages, or salaries due and owing to any of its employees for
services performed by them for the corporation. A civil action may be brought against
a shareholder liable for wages due under this chapter instead of and in addition to the
employer. The shareholders shall be determined by the fair value of their beneficial
interest at the beginning of the period during which any unpaid services are performed.
new text end

Sec. 9.

Minnesota Statutes 2006, section 177.32, is amended by adding a subdivision
to read:

new text begin Subd. 3. new text end

new text begin Calculation of violations. new text end

new text begin For a violation of this chapter that continues for
more than a week, each week is considered a separate violation.
new text end

Sec. 10. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 177.32, subdivision 2, new text end new text begin is repealed.
new text end