On Wednesday, January 8, 2019, the Minnesota Democratic Farmer Labor (DFL) party House leadership introduced Bills 1-10, its priority for this session. The bills include three pro-employee bills.
1. Sexual Harassment
Continuing from the last session, HF1 10 deals with sexual harassment and intends to remove the evidentiary requirement that the harassing conduct be “severe or pervasive.” This standard has been implemented in state and federal courts for many years, but, in several decisions, has raised the bar so high that a harassed employee has been prevented from receiving a fair trial on the merits of their claim. Last session, Sheila Engelmeier of Engelmeier & Umanah (E&U) provided compelling testimony in support of the change. Recently, for the second year in a row, Sheila and Sue Fischer trained Minnesota legislators on sexual harassment and other workplace issues through E&U’s Respect Effect workplace training program.
Prior to the 2018 legislative session, sexual harassment became a significant topic as two legislators resigned after the disclosure of sexual harassment allegations. Late in the session, Republican House Majority Leader Joyce Peppin introduced a bill identical to HF 10. The bill was generally opposed by employers who feared elimination of the standard would result in greater liability and confusion without giving courts guidance on how to evaluate sexual harassment claims. Nevertheless, the bill passed the committee and, with bipartisan support, adopted as a floor amendment to the Omnibus Supplemental bill. The Republican Senate did not vote on the bill before adjournment, which ended the bill’s consideration. Rep. Peppin has since left the legislature for work in the private sector. We’ll see whether House Republicans will be as supportive this year, although several will have their past approving voting record to explain if they choose to oppose the legislation.
This year the bill will certainly get a hearing in the House and the issue will be whether any suggestions from employers to replace the former standard with a new one will be added to the text. The issue remains whether it will get a hearing in the Senate, which remains in Republican control and did not appear inclined to consider it last session. We believe the likelihood of it being considered depends on whether employee and employer groups can agree to a compromise which would get it through the Senate.
2. Family and Medical Benefit Insurance Account
HF 5 proposes a family and medical benefit run through the statutory unemployment benefit insurance program and creates a “Family and Medical Benefit Insurance Division” in the Department of Employment and Economic Development. The bill would provide 12 to 26 weeks of benefits depending on the type of leave requested with caring for military service members receiving the longer benefit.
The bill provides benefits for a person who has a “serious health condition, has a qualifying exigency, is taking safety leave, is taking family leave, is providing family care, is bonding, or is pregnant…” A “qualifying exigency” deals with an employee’s active duty service member or one called to duty and includes things like care, making financial or legal arrangements, and attending military ceremonies. “Safety leave” is leave from work related to issues from domestic abuse, sexual assault, or stalking such as medical treatment, court appearances, victim services, and the like. The leave must be based upon a “single event of at least seven days” and the days “need not be consecutive.”
A person applies for the benefit much like they would for unemployment benefits and the new division makes the decision. The claim for benefits must be based upon a single event involving seven days duration and benefits thereafter may be paid for a minimum of one day.
The bill contains an appeals process which would allow a denial or challenge of benefits be taken to an administrative law judge. It also allows an appeal to the Court of Appeals.
The bill provides for reinstatement to the same or equivalent position after the leave is taken. If not, the employee has a remedy for “damages recoverable by law,” which means emotional distress is included, as well as economic losses, and attorney fees and costs.
Significantly, a leave under the bill does not count as family leave under Minnesota’s family leave statute.
The bill appears to cover all employers although employers may opt out by filing an application agreed to by a “majority of affected employees” if an employer has an equivalent or better plan. The plan also applies to self-employment, provided the premiums are paid.
The bill requires employers pay a premium on all wages paid to employees each calendar year.
The bill appears to be a step in the direction similar to European countries which provide government benefits. We suspect this bill will receive considerable attention and opposition, especially by employers.
3. Prohibition of Wage Theft
HF 6 proposes amending several statutes to provide penalties to employers who fail to pay an employee all wages to which the employee is entitled. For example, an employer could be convicted of a gross misdemeanor if the total of wages for affected employees exceeds $10,000. In addition, there is an added provision giving an employee a claim for retaliation in addition to one to collect wages due.
The proposed bill also places additional record-keeping requirements on employers. These include requirements to record whether each employee is paid by the hour, shift, day, week, salary, piece, or commission, as well as recording any personnel policies provided to employees.
Moreover, the employee’s statement of earning must contain similar information regarding rates of pay and allowances for meals or lodging, as well as the physical address of the employer’s main office and phone number. At the inception of employment, the employer must provide a “written notice” stating rates of pay as above, allowances, paid vacation, sick time or PTO, exemptions from minimum wage or overtime, deductions, pay period dates, employer’s legal name and operating name, main office information and phone number. The notice must be in English and the employee’s native language. The employer must keep a copy of the notice signed by the employee. Finally, any changes to the notice may be made on seven days written notice to the employee, which the employee must sign before the changes go into effect.
Certainly, this proposed legislation targets predatory employers who take advantage of certain laborers, but we suspect employers will resist the recording proposals.
4. Other recent employment bills
HF 11 proposes earned sick and safe time similar to the ordinances now in force in Minneapolis and St. Paul. It permits an employee to earn up to 48 hours per year in sick and safe time leave and provides a cause of action for retaliation for “all damages recoverable by law,” which means emotional distress and economic losses, injunctive and equitable relief, and attorney fees and costs. We expect this bill to be hotly contested in the House and may not get a hearing in the Republican controlled Senate.
HF 13 proposes amending the Minnesota Constitution to add “Equality under the law shall not be abridged or denied on account of gender.” We will watch how this bill is considered.
SF2 120 proposes creating a new statute prohibiting discrimination against unemployed individuals. It would generally forbid an employer from considering an applicant’s unemployed status as a factor in refusing to hire the applicant. We expect we will see more employment bills as the session develops.
5. Additional Thoughts
An interesting observation is found on the Legislature’s public information website:
According to the National Conference of State Legislatures, Minnesota will be the only state with a divided legislature in the 2019-20 biennium. The last time there was only one divided state legislature in the country was 1914.
In the present climate of political division, we would expect more states to be divided like Minnesota and our Congress.
Our House has a significant 16 seat DFL majority while our Senate currently has a one seat Republican 34-33 majority. Thirty-four of the DFL legislators are new. Since Gov. Walz appointed DFL Sen. Tony Lourey to be Commissioner of Health and Human Services, his Senate seat will be having a special election on February 5. The Republicans hope to pick up that seat to add to its Senate majority as that district strongly supported President Trump and congressional Representative Stauber in the 2016 and 2018 elections. If that occurs, it would create a 35-32 majority and likely make it more difficult for the employment bills to receive hearings or a positive vote in the Senate.
Finally, the relationship between Gov. Walz and the Republicans is unknown. Frankly, the relationship between Gov. Dayton and the Republicans was poor and time will tell if compromise will occur. It will be necessary if any of the legislative proposals discussed in this article will ultimately succeed. We will keep you posted.
HF = House File.
SF = Senate File.