With Congress in gridlock, we haven’t seen any federal laws impacting employment law for several years. Instead, we’ve now started to see a lot more action at the state legislative level where proposals to modify everything from family leave to the minimum wage are being passed in, it seems, increasing numbers.
Therefore, what happens in other states is becoming much more important. For instance, we saw that Connecticut was considering an immigration-related employment bill that was modeled on laws in other states.
Because of this, and because many employers now have businesses in multiple states, I’ve asked my friend, Courtney Ward-Reichard, a shareholder at Nilan Johnson Lewis in Minneapolis, to share her insights about a pretty broad employment law bill that was just signed into law earlier this week in Minnesota. While Connecticut already has adopted some of these items, others may be on the horizon, such as lowering the employee threshhold for family leave to 20 or more employees. After all, if one state has passed it, propoants can argue that Connecticut’s passage won’t put us as a competitive disadvantage when compared with similar states.
In any event, my thanks to Courtney for her insights here.
On May 11, 2014, Minnesota Governor Mark Dayton signed landmark legislation – a group of bills that became known as the Women’s Economic Security Act (“WESA”). WESA will most directly affect employers with operations and employees in Minnesota. But employers in Connecticut and elsewhere should take note: this legislation – or its components – may well serve as a model in other states.
Here are the most significant changes:
• Creates new protected class for familial status: WESA expands the Minnesota Human Rights Act (“MHRA”) by adding familial status as a new protected class. Employers will likely face new state charges and lawsuits alleging discrimination on the basis of this status, and victorious plaintiffs may seek not only damages, but also their attorneys’ fees. This expansion makes Minnesota unusual, as federal law and most states’ laws do not include familial status as a protected class. This change became effective the day after Governor Dayton signed the bill.
• Expands pregnancy and parenting leave: Covered employers (with over 20 employees) must provide up to twelve weeks of unpaid leave to eligible employees for: 1) the birth or adoption of a child; or 2) prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions (for female employees). Employees may take the first type of leave within twelve months of the birth/after the child leaves the hospital. These changes will be effective July 1, 2014, and will affect numerous employers who are not covered by the federal FMLA. Employers will be allowed to require employees to use their sick leave during parental leave, and the leave will also run concurrently with any FMLA leave.
• Expands protections and accommodations for nursing mothers: WESA requires all employers “to provide a room or other location, in close proximity to the work area, other than a bathroom or toilet stall, that is shielded from view and free from intrusion and that includes access to an electrical outlet, where the employee can express her milk in privacy.” Employees may bring a civil action to enforce their breastfeeding rights, and they can recover their attorneys’ fees if successful, which may cause a spike in claims in this area. However, WESA also states that employers that make a reasonable effort to comply with this provision will be held harmless. These changes will be effective on July 1, 2014.
• Further expands sick leave: WESA further expands upon the recently broadened sick leave law to allow an eligible employee at a covered employer to use sick leave to care for his or her sick or injured mother-in-law, father-in-law, or grandchild. WESA also allows employees to use employer-provided sick leave for “safety leave,” which is defined as leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking. These amendments will be effective July 1, 2014. The changes will not affect employers who do not provide sick leave or small employers (with 20 or fewer employees).
• Mandates certain pregnancy accommodations: Under WESA, if requested, an employer must provide a reasonable accommodation, including seating, more frequent restroom, food, and water breaks, limits on lifting over 20 pounds, and transfers to a less strenuous position, for conditions related to pregnancy, childbirth, or related health conditions. Employers are also prohibited from retaliating against employees for requesting or obtaining a pregnancy-related accommodation. These changes became effective the day after Governor Dayton signed the bill.
• Prohibits wage nondisclosure agreements: WESA prohibits employers from requiring employees to enter into wage nondisclosure agreements as a condition of employment. WESA also requires employers to include notice of employee rights and remedies in this regard in any provided employee handbooks. This provision will be effective on July 1, 2014. Wage nondisclosure requirements are already prohibited by the National Labor Relations Act for many employees, but Minnesota’s provision applies to all employees and allows prevailing plaintiffs to recover their attorneys’ fees, which may trigger an increase in litigation in this area.
• Requires equal pay certificates for certain employers doing business with Minnesota: WESA prohibits the state or its agencies from executing a contract over $500,000 with who have more than 40 full-time employees unless the business has obtained an equal pay certificate of compliance from the MDHR. Covered employers will have to apply for the certificate and may face audits after receipt of the certificate to ensure compliance. This portion of WESA will be effective July 1, 2014 and will apply to any solicitation made on or after that date.
• Expands the definition of “employee” for various required leaves of absence: WESA changes the definition of employee for the purposes of state-required parental and sick leave. Under the new definition, an employee must only have worked for the employer for twelve months before the leave request (instead of twelve consecutive months immediately preceding the request) and for at least half-time (based on an employer’s full-time equivalent position) for the 12-month period immediately preceding the leave. This change will be effective on July 1, 2014.
Many, if not most, of these provisions will require employers with facilities and employees in Minnesota to modify their policies, practices, documents and training protocols. This is one of the more significant changes to the Minnesota employment law landscape that we have seen in our practice group’s collective experience.