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SF 1794

as introduced - 90th Legislature (2017 - 2018) Posted on 03/07/2017 09:21am

KEY: stricken = removed, old language. underscored = added, new language.

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Current Version - as introduced

A bill for an act
relating to employment; providing for earned sick and safe time; authorizing
rulemaking; imposing civil penalties; requiring reports; proposing coding for new
law in Minnesota Statutes, chapters 177; 181; repealing Minnesota Statutes 2016,
section 181.9413.

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

ARTICLE 1

EARNED SICK AND SAFE TIME

Section 1.

[181.9445] EARNED SICK AND SAFE TIME.

Subdivision 1.

Definitions.

(a) For the purposes of this section and section 177.50, the
terms defined in this subdivision have the meanings given them.

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

(c) "Domestic abuse" has the meaning given in section 518B.01.

(d) "Earned sick and safe time" means leave, including paid time off and other paid leave
systems, that is paid at the same hourly rate as an employee earns from employment that
may be used for the same purposes and under the same conditions as provided under
subdivision 3.

(e) "Employee" means any person who is employed by an employer, including temporary
and part-time employees, who performs work for at least 80 hours in a year for that employer
in Minnesota. Employee does not include an independent contractor.

(f) "Employer" means a person who has one or more employees. Employer includes an
individual, a corporation, a partnership, an association, a business trust, a nonprofit
organization, a group of persons, a state, county, town, city, school district, or other
governmental subdivision. An employer includes a person that hires temporary employees
through an employment service.

(g) "Family member" means:

(1) an employee's:

(i) child, foster child, adult child, legal ward, or child for whom the employee is legal
guardian;

(ii) spouse or registered domestic partner;

(iii) sibling, stepsibling, or foster sibling;

(iv) parent or stepparent;

(v) grandchild, foster grandchild, or stepgrandchild; or

(vi) grandparent or stepgrandparent;

(2) any of the family members listed in clause (1) of a spouse or registered domestic
partner;

(3) any individual related by blood or affinity whose close association with the employee
is the equivalent of a family relationship; and

(4) up to one individual annually designated by the employee.

(h) "Health care professional" means any person licensed under federal or state law to
provide medical or emergency services, including doctors, physician assistants, nurses, and
emergency room personnel.

(i) "Prevailing wage rate" has the meaning given in section 177.42 and as calculated by
the Department of Labor and Industry.

(j) "Retaliatory personnel action" means:

(1) any form of intimidation, threat, reprisal, harassment, discrimination, or adverse
employment action, including discipline, discharge, suspension, transfer, or reassignment
to a lesser position in terms of job classification, job security, or other condition of
employment; reduction in pay or hours or denial of additional hours; the accumulation of
points under an attendance point system; informing another employer that the person has
engaged in activities protected by this chapter; or reporting or threatening to report the actual
or suspected citizenship or immigration status of an employee, former employee, or family
member of an employee to a federal, state, or local agency; and

(2) interference with or punishment for participating in any manner in an investigation,
proceeding, or hearing under this chapter.

(k) "Sexual assault" means an act that constitutes a violation under sections 609.342 to
609.3453 or 609.352.

(l) "Stalking" has the meaning given in section 609.749.

(m) "Year" means a regular and consecutive 12-month period, as determined by an
employer and clearly communicated to each employee of that employer.

Subd. 2.

Accrual of earned sick and safe time.

(a) An employee accrues a minimum
of one hour of earned sick and safe time for every 30 hours worked up to a maximum of 48
hours of earned sick and safe time in a year. Employees may not accrue more than 48 hours
of earned sick and safe time in a year unless the employer agrees to a higher amount.

(b) Employers must permit an employee to carry over accrued but unused sick and safe
time into the following year. The total amount of accrued but unused earned sick and safe
time for an employee may not exceed 80 hours at any time, unless an employer agrees to a
higher amount.

(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 workweek for purposes of accruing earned sick and safe time,
except that an employee whose normal workweek is less than 40 hours will accrue earned
sick and safe time based on the normal workweek.

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

(e) Employees may 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.

Subd. 3.

Use of earned sick and safe time.

(a) An employee may use accrued earned
sick and safe time for:

(1) an employee's:

(i) mental or physical illness, injury, or other health condition;

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

(iii) need for preventive medical or health care;

(2) care of a family member:

(i) with a mental or physical illness, injury, or other health condition;

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

(iii) who needs preventive medical or health care;

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

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

(ii) obtain services from a victim services organization;

(iii) obtain psychological or other counseling;

(iv) seek relocation due to domestic abuse, sexual assault, or stalking; or

(v) seek legal advice or 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;

(4) closure of the employee's place of business due to weather or other public emergency
or an employee's need to care for a family member whose school or place of care has been
closed due to weather or other public emergency; and

(5) when it has been determined by the health authorities having jurisdiction or by a
health care professional that the presence of the employee or family member of the employee
in the community would jeopardize the health of others because of the exposure of the
employee or family member of the employee to a communicable disease, whether or not
the employee or family member has actually contracted the communicable disease.

(b) An employer may require notice of the need for use of earned sick and safe time as
provided in this paragraph. If the need for use is foreseeable, an employer may require
advance notice of the intention to use earned sick and safe time but must not require more
than seven days' advance notice. If the need is unforeseeable, an employer may require an
employee to give notice of the need for earned sick and safe time as soon as practicable.

(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 or employee of a victims services organization, an
attorney, a police officer, or an antiviolence counselor as reasonable documentation. An
employer must not require disclosure of details relating to domestic abuse, sexual assault,
or stalking or the details of an employee's or an employee's family member's medical
condition as related to an employee's request to use earned sick and safe time under this
section.

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

(e) Earned sick and safe time may be used in the smallest increment of time tracked by
the employer's payroll system, provided such increment is not more than four hours.

Subd. 4.

Retaliation prohibited.

An employer shall not take retaliatory personnel action
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.

Subd. 5.

Reinstatement to comparable position after leave.

An employee returning
from a leave under this section is entitled to return to employment in the employee's former
position. If, during a leave under this section, 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. 6.

Pay and benefits after leave.

An employee returning from a leave under this
section 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 under this section prevents the accrual of
benefits or seniority during the leave pursuant to a collective bargaining or other agreement
between the employer and employees.

Subd. 7.

Part-time return from leave.

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, as provided under this section.

Subd. 8.

Notice and posting by employer.

(a) Employers must give notice that
employees are entitled to earned sick and safe time, including the amount of earned sick
and safe time, the accrual year for the employee, 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.

(b) Employers must supply employees with a notice in English and other appropriate
languages that contains the information required in paragraph (a) within 60 days of
commencement of employment or the effective date of this section, whichever is later.

(c) Employers shall display a poster in a conspicuous and accessible place in each
establishment where employees are employed that contains all information required under
paragraph (a). The commissioner shall create and make available to employers a poster and
a model notice that contains the information required under paragraph (a) for their use in
complying with this section.

(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.

Subd. 9.

Required statement to employee.

(a) Upon request of the employee, the
employer must provide, in writing or electronically, current information stating the
employee's amount of:

(1) earned sick and safe time available to the employee; and

(2) used earned sick and safe time.

(b) Employers may choose a reasonable system for providing the information in paragraph
(a), including but not limited to listing information on each pay stub or developing an online
system where employees can access their own information.

Subd. 10.

Employer records.

(a) Employers shall retain accurate records documenting
hours worked by employees and earned sick and safe time taken and comply with all
requirements under section 177.30.

(b) An employer must allow an employee to inspect records required by this section and
relating to that employee at a reasonable time and place.

Subd. 11.

Confidentiality and nondisclosure.

(a) If, in conjunction with this section,
an employer possesses (1) health or medical information regarding an employee or an
employee's family member; (2) information pertaining to domestic abuse, sexual assault,
or stalking; (3) information that the employee has requested or obtained leave under this
section; or (4) any written or oral statement, documentation, record, or corroborating evidence
provided by the employee or an employee's family member, the employer must treat such
information as confidential. Information given by an employee may only be disclosed by
an employer if the disclosure is requested or consented to by the employee, when ordered
by a court or administrative agency, or when otherwise required by federal or state law.

(b) Records and documents relating to medical certifications, recertifications, or medical
histories of employees or family members of employees created for purposes of this section
or section 177.50 must be maintained as confidential medical records separate from the
usual personnel files.

Subd. 12.

No effect on more generous sick and safe time policies.

(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.

(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.

(c) Employers who provide earned sick and safe time to their employees 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.

(d) An employer may opt to satisfy the requirements of this section for construction
industry employees by:

(1) paying at least the prevailing wage rate as defined by section 177.42 and as calculated
by the Department of Labor and Industry; or

(2) paying at least the required rate established in a registered apprenticeship agreement
for apprentices registered with the Department of Labor and Industry.

An employer electing this option is deemed to be in compliance with this section for
construction industry employees who receive either at least the prevailing wage rate or the
rate required in the applicable apprenticeship agreement regardless of whether the employees
are working on private or public projects.

(e) This section does not prohibit an employer from establishing a policy whereby
employees may donate unused accrued sick and safe time to another employee.

(f) This section does not prohibit an employer from advancing sick and safe time to an
employee before accrual by the employee.

Subd. 13.

Termination; separation; transfer.

This section does not require 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 180 days 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.

Subd. 14.

Employer succession.

(a) When a different employer succeeds or takes the
place of an existing employer, all employees of the original employer who remain employed
by the successor employer are entitled to all earned sick and safe time accrued but not used
when employed by the original employer, and are entitled to use all earned sick and safe
time previously accrued but not used.

(b) If, at the time of transfer of the business, employees are terminated by the original
employer and hired within 30 days by the successor employer following the transfer, those
employees are entitled to all earned sick and safe time accrued but not used when employed
by the original employer, and are entitled to use all earned sick and safe time previously
accrued but not used.

Sec. 2. REPEALER.

Minnesota Statutes 2016, section 181.9413, is repealed.

Sec. 3. EFFECTIVE DATE.

Sections 1 and 2 are effective 180 days following final enactment.

ARTICLE 2

EARNED SICK AND SAFE TIME ENFORCEMENT

Section 1.

[177.50] EARNED SICK AND SAFE TIME ENFORCEMENT.

Subdivision 1.

Definitions.

The definitions in section 181.9445, subdivision 1, apply to
this section.

Subd. 2.

Rulemaking authority.

The commissioner may adopt rules to carry out the
purposes of this section and section 181.9445.

Subd. 3.

Report of violations.

An employee or other person may report to the
commissioner any suspected violation of section 181.9445. The commissioner may initiate
an investigation pursuant to a report or when the commissioner has reason to believe that
a violation of this section or section 181.9445 has occurred.

Subd. 4.

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 that the commissioner deems
necessary or appropriate. The records that 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 in a specific
format 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 $10,000 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. If an employer fails to maintain or retain adequate records or
fails to submit or deliver records as required by this section and an issue arises as to an
alleged violation of an employee's rights under this chapter, it shall be presumed that the
employer has violated this chapter, absent clear and convincing evidence otherwise.

Subd. 5.

Compliance orders.

The commissioner may issue an order requiring an
employer to comply with this section. The commissioner shall issue an order requiring an
employer to comply with this section if the violation is repeated. 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 a violation of this section and the order is final or the
commissioner and the employer have entered into a settlement agreement that required the
employer to pay back earned sick and safe time. 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.

Subd. 6.

Employer liability.

(a) If the commissioner finds that an employer has violated
any section or any rule adopted under this section, 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 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. 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.

(b) If the commissioner determines that an employer has repeatedly or willfully violated
this section or any rule adopted under this section, 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 section 14.045, subdivision
3, paragraph (b), when assessing these civil penalties.

(c) 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.

(d) It is the responsibility of all employers to not enter into any contract or agreement
for labor or services where the employer has any actual knowledge or knowledge arising
from familiarity with the normal facts and circumstances of the business activity engaged
in, or has any additional facts or information that, taken together, would make a reasonably
prudent person undertake to inquire whether, taken together, the contractor is not complying
or has failed to comply with this section. For purposes of this paragraph, "actual knowledge"
means information obtained by the employer that the contractor has violated this section
within the past two years and has failed to present the employer with credible evidence that
such noncompliance has been cured going forward.

Subd. 7.

Individual remedies.

In addition to any other remedies provided by law, a
person injured by a violation of this section may bring a civil action to recover any and all
damages recoverable by law, together with costs and disbursements, including reasonable
attorney fees, and may receive injunctive and other equitable relief as determined by a court.

Subd. 8.

Grants to community organizations.

The commissioner may make grants to
community organizations for the purpose of outreach to and education for employees affected
under this section regarding their rights under this section. 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.

Subd. 9.

Report to the legislature.

(a) The commissioner must submit an annual report
to the legislature, including to the chairs and ranking minority members of any relevant
legislative committee. The report must include, but is not limited to:

(1) a list of all violations of this section, including the employer involved, and the nature
of any violations; and

(2) an analysis of noncompliance with this section, including any patterns by employer,
industry, or county.

(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.

EFFECTIVE DATE.

This section is effective 180 days after final enactment.

APPENDIX

Repealed Minnesota Statutes: 17-3789

181.9413 SICK LEAVE BENEFITS; CARE OF RELATIVES.

(a) An employee may use personal sick leave benefits provided by the employer for absences due to an illness of or injury to the employee's child, as defined in section 181.940, subdivision 4, adult child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent, for reasonable periods of time as the employee's attendance may be necessary, on the same terms upon which the employee is able to use sick leave benefits for the employee's own illness or injury. This section applies only to personal sick leave benefits payable to the employee from the employer's general assets.

(b) An employee may use sick leave as allowed under this section for safety leave, whether or not the employee's employer allows use of sick leave for that purpose for such reasonable periods of time as may be necessary. Safety leave may be used for assistance to the employee or assistance to the relatives described in paragraph (a). For the purpose of this section, "safety leave" is leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking. For the purpose of this paragraph:

(1) "domestic abuse" has the meaning given in section 518B.01;

(2) "sexual assault" means an act that constitutes a violation under sections 609.342 to 609.3453 or 609.352; and

(3) "stalking" has the meaning given in section 609.749.

(c) An employer may limit the use of safety leave as described in paragraph (b) or personal sick leave benefits provided by the employer for absences due to an illness of or injury to the employee's adult child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent to no less than 160 hours in any 12-month period. This paragraph does not apply to absences due to the illness or injury of a child, as defined in section 181.940, subdivision 4.

(d) For purposes of this section, "personal sick leave benefits" means time accrued and available to an employee to be used as a result of absence from work due to personal illness or injury, but does not include short-term or long-term disability or other salary continuation benefits.

(e) For the purpose of this section, "child" includes a stepchild and a biological, adopted, and foster child.

(f) For the purpose of this section, "grandchild" includes a step-grandchild, and a biological, adopted, and foster grandchild.

(g) This section does not prevent an employer from providing greater sick leave benefits than are provided for under this section.

(h) An employer shall not retaliate against an employee for requesting or obtaining a leave of absence under this section.

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