On February 19, 2015, DFL members of the Minnesota Legislature introduced new legislation that would impose significant new wage and hour requirements on employers in Minnesota, including new requirements for employers to provide advance notification to employees about their work schedules, to provide flexible working arrangements requested by employees, and to disclose detailed information to employees on an annual basis. See H.F. 1093.
This new legislation is in addition to the new paid sick and safe leave bill and the new paid parenting and caregiver leave bill recently introduced in Minnesota. Collectively, these bills are now being referred to as the “Working Parent Act” or the “WPA.” If passed, the legislation would represent one of the most significant changes in Minnesota employment law in recent history.
Here’s what employers need to know about the newest legislation under consideration:
Fair Scheduling Provisions: The new bill will require any employer with one or more employees to “give each employee the employee’s individual initial work schedule, in writing, at least 21 days before the first day of that work schedule,” including any on-call time that the employee will be required to be available for work. Employers will also be required to “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.” The new bill will also require that:
- 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;
- 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;
- 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;
- 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;
- 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; and
- 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.
Predictability Pay: The new bill would require that, if an employer cancels or changes an employee’s scheduled shift within 21 days of the shift, but not less than 24 hours before the start of the shift, the employer would have to pay the employee one hour of pay as “predictability pay” in addition to the wages earned for each changed shift, if any. If, within 24 hours of the shift, the employer changes the start or end times of the shift without changing the total hours of the shift, or adds hours to the shift, the employer would also have to pay one hour of predictability pay in addition to wages earned. In addition, the new bill would require that, if an employer cancels the shift or reduces the hours in the shift with less than 24 hours notice, the employer would have to 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. No predictability pay would be required if the employee requested the shift change or if the employee voluntarily traded his or her shift with another employee.
Flexible Working Arrangements: The new bill would give employees the right to request a “flexible working arrangement” (such as a modified work schedule, a more predictable schedule, changes in start and end times, changes in job duties, or telecommuting) in writing at any time. The employer would then be required to “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 would have to begin this interactive process within two days after the employee’s request and would have to notify the employee of its decision, in writing, within two days of the last communication between the employer and the employee.
The new bill would also provide that “[i]f 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.” The bill does not include any exceptions to this requirement, nor does it provide any mechanism for employers to verify whether one of the conditions mandating a flexible working arrangement is satisfied.
Right to Rest: The new bill would give employees a “right to rest,” which would allow them to decline work hours that occur either: (i) less than 11 hours after the end of the previous shift; or (ii) during the 11 hours following the end of a shift that spanned two days. If an employee works these hours voluntarily, the employer must pay the employee one-and-one-half time the employee’s regular rate of pay.
No Discrimination Based On Hours of Work: The new bill would prohibit employers from paying a different rate of pay or conditioning eligibility for raises or promotions based on the number of hours an employee is scheduled for employees whose jobs require “equal skill, effort, and duties, and that are performed under similar working conditions.” But the bill would allow different rates of pay or conditioning eligibility for raises or promotions to be based “on other reasons, such as seniority systems, merit, employee responsibilities, or systems that measure earnings by quantity or quality of production.”
The new bill would also prohibit employers from: (i) conditioning 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;” or (ii) prorating “employee leave or time off based on the number of hours the employee works.”
Gratuities: The new bill would require employers to credit gratuities paid to an employee via a debit or credit card to the employee during the pay period in which they are received. The bill would provide that “[w]here a gratuity is given by a customer through a debit, charge, or credit card, the full amount of gratuity must be allowed the employee.” The new bill would also repeal the current Minn. R. § 5200.0080, subp. 7, which allows employers to deduct credit card processing fees from gratuities paid using a debit or credit card.
Rest Breaks: The new bill would amend Minnesota law regarding rest breaks to require an employer to provide an employee with “a rest break of at least ten minutes per four consecutive hours of work.” These rest breaks would need to be counted as hours worked.
Meal Breaks: The new bill would amend Minnesota law regarding meal breaks to require an employer to “permit each employee who works for five or more consecutive hours a meal break of at least 30 minutes, except that if the work period for the day is six consecutive hours or less, the employee and employer may waive the meal break by mutual consent.” This would result in a mandatory meal break for employees who work more than 6 hours, which employees could not refuse.
Employer Statements: The new bill would require employers to provide a statement to each new employee as well as an annual statement to each employee disclosing detailed information about the terms and conditions of employment, including:
- The full name, mailing address, and phone number of the employer;
- The federal and state tax identification numbers of each employer, but not including Social Security numbers of employers who are individuals;
- The place or places of employment;
- The hours of work per day and number of days per week that the employee will be required to work;
- 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;
- The anticipated period of employment;
- 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;
- 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: (i) transportation to and from work; (ii) housing; (iii) health insurance or health care; (iv) any paid or unpaid leave or holidays; (v) pension or retirement benefits; (vi) personal protective equipment required for the work; (vii) workers’ compensation policies, including information about the employer insurance policy or policies, and rules regarding the reporting of accidents or injuries; and (viii) unemployment compensation;
- The nature of the work to be performed by the employee;
- Information regarding any existing strike, lockout, or concerted work stoppage, slowdown, or interruption of operations at the place of employment; and
- 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.
Statute of Limitations: The new bill would amend the statute of limitations under Minnesota law to six years for any claims “for the recovery of wages, overtime or damages, fees, or penalties accruing under any federal or state law respecting the payment of wages, overtime or damages, fees, or penalties.” The current statute of limitations for wage claims in Minnesota is two years generally and three years for willful violations. See Minn. Stat. § 541.07(5).
Takeaway: The new employment legislation introduced so far this session as the “Working Parents Act” represents a potentially massive change for employers and includes numerous new obligations that will have substantial effects on employers throughout the state. As we’ve said before, if you feel strongly about this new legislation – one way or the other– contact your state representatives to let them know how you feel.