Apple picking
Minnesota employers employing 30 or more migrant workers – be aware you have unique considerations for the employment of such workers pursuant to Minnesota’s Migrant Labor law, Minn. Stat. 181.85 – .89. So, what’s up? As I’ll detail below, this employment is not really “at will”, like most employment relationships in Minnesota. There must be a contract between the two parties (the employment statement), which must provide for: payment every 2 weeks; guarantee minimum hours each bi-weekly pay period; and an itemized payroll statement.  Keep in mind that there are additional requirements when employing H-2A temporary agricultural workers – this post is just focusing on the Minnesota Migrant Labor law considerations.

Does the Minnesota Migrant Labor Law Apply To Your Business?

This law applies to employers that process fruits or vegetables, using more than 30 recruited migrant workers per day, for more than 7 days a calendar year. This seems simple enough, but of course each term is defined…

A “migrant worker” is someone at least 17 years of age, who travels more than 100 miles to Minnesota from another state to perform seasonable agricultural labor.

“Agricultural labor” is field labor – cultivating and harvesting fruits and vegetables, and the related processing work.

“Recruited” is just what you’d imagine – when the employer induces a worker from another state (directly or indirectly, through a recruiter) to travel to Minnesota for agricultural labor.

A “recruiter” is someone that solicits, hires, furnishes migrant workers (excluding immediate family) for agricultural labor to work in Minnesota.  A recruiter does not include a public agency. However, there is an exception – if you use the federal work clearance order system under the Wagner-Peyser Act of 1933 (known as the Employment Service, encompassing American Job Centers, aka One-Stop Career Center) to recruit migrant workers, you must still follow Minnesota’s Migrant Labor law requirements.

What Must the Employment Statement Consist Of?

Upon recruiting a migrant worker, the employer must provide a written statement in English AND Spanish.  This statement is an enforceable contract between the employer and the migrant worker.  The written statement must include the following:

  1. Date and location where statement was completed and provided to the worker;
  2. Name and permanent address of the worker, employer, and recruiter;
  3. Date the worker is to arrive at the place of employment, date work is to begin, approximate hours of employment, and minimum period;
  4. Identity of crops and operations on which the worker will be employed;
  5. The wage rate that will be paid;
  6. Payment terms (see below);
  7. Deductions that will be made from wages; and
  8. Whether housing will be provided.

What About Payment Terms?

The payment terms required above consist of the following pursuant to Minn. Stat. 181.87:

  1. When wages will be paid (must be at least every 2 weeks and within 3 days upon termination).
  2. The guaranteed hours (this is somewhat complicated, but to sum, generally, the employer must guarantee each recruited migrant worker at least 70 hours of pay for work in 2 successive weeks – if those hours are not provided, the employer has 3 days following the payday to pay the minimum guarantee difference – unless no work is available for 7 or more consecutive days due to climate conditions or act of God, then the migrant worker is entitled to at least $5 per day).
  3. If the migrant worker is fired for cause (not because there was a lack of work) or quits, entitlement to minimum bi-weekly guarantee ends.
  4. Statement that the migrant worker must vacate the provided housing upon final payment of all wages (or not, depending on your business – just has to be clear what happens to housing in the case of a termination).
  5. Itemized deductions – each payroll the employer  must provide a written statement clearly itemizing each deduction from wages.

Recordkeeping & Other Considerations

Finally, don’t forget to keep records for 3 years of the following:  name, daily hours worked, rate of pay, and wages paid. Also, you should keep a copy of any time records, payroll records, and the employment statement provided to the migrant worker upon recruitment.

What happens if an employer violates the Minnesota Migrant Labor law?  The migrant worker may sue the employer in court for the backpay, court costs and attorneys’ fees.  In addition, an employer may be penalized $50 for recordkeeping violations; $250 for not providing a written employment statement or it not being compliant with the law’s requirements (i.e. not in Spanish); $500 for failing to company with terms of an employment statement or payment terms; and $500 for late payment of wages.  These penalties will be awarded to each migrant worker and against each employer/defendant found liable. In addition, the law provides that these are not exclusive remedies – in other words, the migrant worker may sue under other laws (i.e. Minnesota Payment of Wages Act or Minnesota Human Rights Act) and recover as well.

US-CourtOfAppeals-8thCircuit-SealI recognize this is a Minnesota wage and hour blog, but I would be remiss to not blog about the decision stemming from Minnesota today – Ventura v. Kyle. The Eighth Circuit Court of Appeals issued its opinion today, throwing out former Minnesota Governor, Jesse Ventura’s, $1.3 million unjust-enrichment judgment; vacating his $500,000 defamation judgment; and remanding the defamation claim for a new trial.

What happened? On January 3, 2014, Chris Kyle (now deceased), released a book he wrote titled, American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History. In the book, Kyle stated he punched a “celebrity”, who he referred to as “Scruff Face”, after that celebrity supposedly made anti-American statements. Thereafter, in interviews, Kyle identified “Scruff Face” as Ventura. Ventura denied the altercation, claiming it was all a fabrication. Ventura sued Kyle under Minnesota law for defamation, misappropriation, and unjust enrichment. Kyle won the misappropriation claim, but lost the others at trial. The jury awarded Ventura $1.3 million in damages for the unjust enrichment claim, and $500,000 for the defamation claim.

So what went wrong for Ventura? The Court held that during the course of the trial, Ventura’s counsel improperly cross-examined two witnesses regarding Kyle’s insurance coverage, and again noted the insurance coverage in closing remarks (stating, the “insurer is on the hook if you find that Jesse Ventura was defamed”). The Court held that these statements, heard by the jury, prevented Kyle from a fair trial as to the defamation claim. Rule 411 of the Federal Rules of Evidence (the Rules lawyers have to play by in a Federal lawsuit), prohibits the use of insurance evidence to prove whether a person acted wrongfully –  but can be used for other reasons – not applicable here. The reasoning is not a shocker. Economic ties to insurance coverage may skew a jury, believing there is a deep, uninterested pocket.

As for the unjust-enrichment judgment, the Court held it is inconsistent with Minnesota law, as there was no pre-existing contractual or quasi-contractual relationship between Kyle and Ventura, and in any event, other remedies were available (i.e. the defamation monies). Accordingly, that judgment was reversed (Kyle wins, no retrial).

So what’s next? Well, Ventura may indeed retry the defamation claim, or may decide to call it what it is, and move on.  Or, the parties may decide to settle it, agreeing on an “amicable resolution” short of additional litigation. That’s lawyer speak for – settle the case before more attorneys’ fees and costs are incurred and disruption to the parties’ lives. Only time will tell…let the speculation begin.

MinneapolisMinneapolis recently “reaffirmed” its commitment to the 2015 Minnesota Responsible Contractor Act, Minn. Stat. 16C.285, and enacted additional factors and implementation procedures when determining whether a contractor is “responsible” for purposes of being awarded public construction projects.  Are you a responsible contractor?  If you are a contractor doing business with the State of Minnesota pursuant to a contract of over $50,000, you must be, or you may be prohibited from doing business with the State.  For more information on the actual Act, click here for the Minneapolis PowerPoint presentation.  In any event, the Act states that a contracting authority (such as a city), may establish “additional factors for defining contractor responsibility.”  Of course, Minneapolis has done just that.

On April 21, 2016, Minneapolis passed Resolution No. 2016R-127, stating that, in order to be “responsible”, a contractor must verify that, for the past 3 years, it has not violated the requirements for payment of wages for construction work as provided by any Minneapolis ordinance, resolution, policy or contract.  Specifically, the contractor must not have had to pay back wages or penalties in excess of $10,000 on one or more projects during this 3 year period.  Further, the contractor must not have made any false statements in a verification of compliance submitted to Minneapolis during the 3 year period.

How is this implemented? Contractors should see these additional factors in solicitation documents for all covered projects. Keep in mind, nobody is excluded; it applies to the general and subcontractors alike. Failure to comply with these new procedural requirements will render the contractor ineligible to be awarded the bid.

 

Panorama_view_of_ValleyfairAs kids flock to Valleyfair today, one thing is clear…schools out for summer!  [I really need a guitar riff here].  What hours can our teens work?  Teens ages 16 and 17 have NO restrictions during the summer! So, schedule away! I’m sure their parents will be more than grateful.  However, teens ages 14 and 15 cannot work before 7 am, or after 9 pm, and cannot work more than 8 hours per day and 40 hours per week – even during the summer and on weekends.

Kids younger than 14 cannot work at all, with some exceptions.  If they are 11 they may be a newspaper carrier.  If they work in agriculture they must be 12 and have parental consent.  They may be an actor or model, or may be a youth athletic program referee (if at least 11 and officiating in a bracket younger than their own age and with an adult representing the program on the premises).  In additional, a minor may be employed to do home chores, babysit, or be employed by a parent.

However, the MnDOLI Commissioner may grant exemptions to the youth work rules, but only if it is “in the best interest of the minor involved”, or for minors participating in state-approved training programs (such as those taught by a trade union).  Keep in mind that child labor exemption permits are an exception to the rule, and is typically reserved for unique qualifications, special employer needs (I have no idea what this would be), or youth with special talents.

Retain Proof of Age of Minor Employees!

But she LOOKED 16!  He SAID he was 16!  This is never a defense.  Don’t get so excited to have someone excited to do the dirty work that you don’t stop to verify the facts.  Employers are required to obtain a minor’s proof of age and maintain that with your payroll records.  Acceptable documentation may be a birth certificate, copy of driver’s permit or license, age certificate issued by school, or an I-9. This proof must be kept for so long as the teen is employed, and available for an agent of the Minnesota Division of Labor Standards to examine it if they so desire.

Repercussions

And if you mess up?  Penalties under Minn. Stat. 181A.12 range in amounts from $250 (for failing to have proof of age in his or her personnel file) to $1,000 per employee.  In addition, it may be found to be a misdemeanor and, should an employer engage in repeated violations, it may be a gross misdemeanor.

Minneapolis panoramaOn January 15, 2016, the Minneapolis City Council first introduced proposed revisions to the Minneapolis Prevailing Wage Ordinance.  The initial draft was revised on April 13, 2016, and on May 27, 2016, the City Council referred the proposed ordinance to the Ways and Means Committee.  So, what’s in store for Minnesota public works contractors? Not surprisingly, not much good.  The proposed amendments are:

  • Clarification of the City’s current practice to enforce contracts of at least $50,000.  Anything below that will be reviewed on a complaint-made basis only, unless subject to the DBA.
  • Mandating that all contracts requiring prevailing wages to be paid must contain a provision stating that the contractor must comply with the City of Minneapolis Prevailing Wage Ordinance. This onus is on the City – though certainly if they forget to put it in a contract, the contractors will still have to comply with the ordinance as they will argue it was clear in pre-bid meetings…yes, I’ve heard that before.
  • Determining that any laborer, mechanic, or employee employed by a contractor (or sub) is intended to be a third-party beneficiary of the contract.  This is actually a very big deal – currently, we are able to argue that third-parties (such as employees) are not beneficiaries of the contract between the city and a contractor and thus the lawsuit is improper. Accordingly, when a contractor allegedly breaches the contract by failing to pay prevailing wages, the employee has no private right of action to sue the employer because the employee was not a party to the supposedly breached contract.  This change will allow anyone to sue the contractor for breaching the agreement with the City.  This will bring the ordinance in line with the Minnesota Prevailing Wage Act.  Recall, the DBA still does not allow a private right of action.
  • Adding certification requirements after bid opening and prior to the contract award.  The contractor will have to submit to the Minneapolis Director of Civil Rights, a wage compliance certificate guarantying payment of prevailing wages and confirming identity of subs and suppliers and their benefits agents, job classifications that will be used (including each sub), anticipated number of hours to be worked for each class of labor, the prevailing wages and benefits for each class, and proof that all subs are independent contractors.
  • Requiring that all laborers and mechanics working on the project are paid at least every two weeks (bi-weekly).  Minnesota law mandates that wages must be paid at least monthly, so this will reduce that by half.  However, rarely are contractors paying monthly, so this is likely to be a non-issue.
  • Requiring that the contractor provide the Director a bi-weekly certified payroll. Failure to do so may result in withholding of payments and audit of books and records.  Certified payrolls must be retained for 1 year after completion of the work.
  • Confirming the Department will monitor compliance, including review of certified payrolls and job site visits.  The Department must participate in the pre-award conference and the review of the certified payroll reports.
  • Adding penalties for failing to comply with the ordinance.  Such penalties may include withholding payment for that project or other projects with the City, a 5% penalty on contract price as liquidated damages, and suspension or debarment. The rules for this exact process will have to be created (i.e. due process).
  • Adding a section requiring subcontractors and independent contractors to provide the Department of Civil Rights with certain proof regarding their status.  Specifically, that they are a “bona fide” independent contractor including business filing with the Secretary of State (be sure it is right too – I’ve seen them confused over a “Co.” and “Inc.” error!), proof of workers’ compensation and unemployment insurance.

Since this is still in the works, we can’t say for sure how it is going to shake out in the end.  However, it is likely we will see many of these changes in the near future, so stay tuned…

US-CourtOfAppeals-8thCircuit-SealIn a big win for employers, on June 2, 2016, in Lochridge v. Lindsey Management Co., Inc., the Eighth Circuit Court of Appeals held that a prevailing defendant (employer) can, and should, recover its costs of Fair Labor Standards Act (FLSA) litigation.  The Eighth Circuit encompasses the states of Minnesota, Iowa, Missouri, Arkansas (where the case originated), North Dakota, South Dakota and Nebraska.

In this case, a group of employees challenged their exempt classification by suing their employer, Lindsey Management. The jury returned a verdict for the employer (simple terms = the employees lost), finding that the employees were properly classified.  Had the employee’s won, they would have been entitled to, and indeed would have sought, reimbursement for their attorneys’ fees and their costs of bringing the lawsuit.   Costs usually include deposition transcripts (which can be $500 – $2,500 depending on the exhibits, whether it is videotaped, etc.), witness fees, court reporter transcript fees, and clerk of court filing fees.  Accordingly, in a collective action or class action, as is often the case in FLSA litigation, the costs can get extremely high as multiple parties are involved which means numerous witnesses and depositions.

Anyway, following the verdict, Lindsey filed a Bill of Costs, asking the court to award it’s costs to defend the lawsuit – here it was $22,687.51.  The district court denied the Bill of Costs, reasoning that the FLSA is “remedial in nature” and thus defendants should never recover costs.  In an awesome move for employer-defendants, Lindsey actually “took one for the team”, and appealed the decision (keep in mind the appeal likely cost as much as, or more than, the Bill of Costs).

The Eighth Circuit Court of Appeals determined that neither the Federal Rules of Civil Procedure, Rule 54(d)(1), nor the FLSA at Section 216(b), preclude the award of costs to a prevailing defendant.  The Court held that just because the FLSA only addresses costs to a prevailing plaintiff does not mean that an employer can’t collect its costs:

The fact that a prevailing party prosecutes its rights under the Federal Rules of Civil Procedure to an award of costs cannot be seen as chilling the flow of litigation.  ‘Indeed, the very possibility that a losing party will be required to reimburse the prevailing party for its costs should cause parties to litigation to pause and calculate the risks of pursuing meritless or marginal claims.  After all, the Rules presume that the prevailing party is entitled to costs.  It is incumbent on an attorney to explain the risks of litigation to his or her client – including the risk that under Rule 54(d)(1) they may have to pay costs should their litigation ultimately prove unsuccessful.”

In other words, the Court basically affirmed that FLSA plaintiffs should have some skin in the game.  Plaintiffs must understand that there are risks to litigation, including not only losing, but actually having to pay significant costs if they lose. Perhaps this will encourage more early settlement, more productive settlement negotiations, and desire to participate in mediation in good faith.  While some may argue this will “chill” litigation – I say not so. What it will do is encourage attorneys to have frank discussions (or not take a case) with a prospective client when the facts are not there to support bringing the litigation.  Further, it is not unusual for parties to settle a case post-district court decision, by agreeing to dismiss the case and not appeal, in exchange for not seeking an award of costs.  Thus, that bargaining chip has now rightfully been provided to both parties – a big win for employers.

Bridgestone_Potenza_F1_Rear_TireOn May 13, 2016, in Hernandez v. Bridgestone Americas Tire Operations, the 8th Circuit Court of Appeals held that mandatory overtime hours may be deducted from an employee’s FMLA leave entitlement, but similarly, mandatory overtime hours must be included when calculating total FMLA leave entitlement.  In other words, an employer can’t have its cake and eat it too.

The Facts

In this case, Bridgestone Americas Tire Operation (BATO) had an attendance program for hourly employees pursuant to a collective bargaining agreement (CBA).  the CBA also set forth overtime procedures.  An overtime sign-up sheet is posted; if an employee is willing to work overtime hours, s/he signs up. Once the employee signs up and is selected to work overtime, the overtime hours become “mandatory” (instead of voluntary), and the employee may be disciplined under the attendance program for missing the shift.  If an employee misses an overtime shift for an FMLA-qualifying reason, the overtime is deducted from the employee’s FMLA entitlement. In this case, the plaintiff was normally scheduled for 42 hours per week. Accordingly, BATO credited him with 504 hours of FMLA (42 hours a week x 12 weeks).  When he ran out of this FMLA entitlement and missed work, he was terminated under the attendance program for missing time, even though his reason for missing work was for FMLA-qualifying absences.

So, what went wrong?  Unfortunately for BATO, while they deducted missed overtime shifts from the employee’s FMLA entitlement, they failed to include overtime hours into his FMLA entitlement. In other words, Hernandez may have worked 54 hours all 12 weeks due to picking up an extra shift each week, which would have resulted in 648 hours of available FMLA. Since they only calculated his FMLA entitlement based on a 42 hour workweek, he was not given any credit for overtime hours worked in his normal workweek.  Accordingly, the Court held that BATO interfered with Hernandez’s FMLA rights by not crediting him for his overtime work and thus inappropriately calculating his FMLA leave (resulting in his termination for missing work (unexcused) under its attendance program).

The Takeaway

  • Make it clear to employees at what point voluntary overtime becomes “mandatory”.
  • Be sure to include overtime hours in calculating an employee’s “hours worked” for purposes of FMLA eligibility (1,250 hours worked during 12 months prior to start of FMLA leave).
  • Ensure that mandatory overtime hours are treated as hours worked for both entitlement and leave taken.

Final Thoughts

The FMLA provides that entitlement is based on a workweek – not number of days or hours worked (thus, if they miss a week of work and a holiday falls in that week, they are charged for that holiday).  However, if they normally work more than 40 hours, the entitlement is not capped at 480 hours – the focus is the employee’s normal workweek (hours/days per week).  FMLA leave is easy to calculate when the employee takes whole-week increments, but it gets much more messy when they need  intermittent leave.  If this is an issue, you may want to start at 29 C.F.R. 825.205(c) (this is the statute that was disputed in this case) and perhaps also check out the DOL Wage and Hour Division’s Opinion Letter FMLA2002-1.

Salary plus overtimeFollowing the big news about the overtime regulations overhaul, I’ve been fielding several calls from concerned HR professionals regarding the actual conversion of certain employees (paid less than $47,476) from exempt to non-exempt by December 1, 2016.  As I predicted, many employees are already voicing concerns about not being paid a salary (and thus, not having a definite salary each workweek, even when 40 hours are not worked). While not interchangeable, people often will say employees are either exempt (salary) or non-exempt (hourly). However, this is not the case.  As I touched upon in my earlier post announcing the new overtime regulations, a non-exempt employee can actually be paid a salary. Here’s how, in 3 easy steps.

Step 1: Pay the Employee a Salary of At Least Minimum Wage 
First, the employee is not exempt from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime protections.  This means no matter what, the employee must be paid at least minimum wage for all hours worked in a workweek. Federal minimum wage is currently $7.25/hr. Minnesota minimum wage is currently between $7.25/hr. and $9/hr., depending on the employer size. Accordingly, a non-exempt employee’s salary must be at least $7.25 x 40 = $290/wk (small employer) or $360/wk (large employer).  Annually, this equates to $15,080 and $18,720, respectively.  However, for the most part, employers will typically use this method for paraprofessional employees (that will be misclassified as of December 1) in the $30k-$47k range, so the minimum wage issue is rarely a factor.  Either way, the employee’s salary must be at least (but can be more) the minimum wage.  Keep in mind too, the whole point is that if the employee works LESS than 40 hours, you are still going to pay the salary. Thus, the employee has a guaranteed income each week, no matter what.  Work gets slow, the employee gets the salary.  Work gets crazy, the employee gets the salary (plus overtime).  However, as you’ll see below – the employer actually pays less for overtime each hour the more overtime the employee works, so it is generally a wash in the long run.

Step 2: Pay the Employee Overtime at the “Regular Rate” for the Workweek

Next, the employee must, like any “hourly” employee, record all hours worked. There are several ways this can be done, which I blogged about here. Why? Because the employee is not exempt from the FLSA, the employee is entitled to overtime (time-and-a-half), for all hours worked over 40 in a workweek (or 48 hours in a workweek for Minnesota businesses if the FLSA does not apply to your business – I’ll stick with FLSA 40 hours for this example).   So, the employee’s paycheck will show the salary for 40 hours plus the additional pay for overtime hours at 1.5 x the regular rate.  What is the employee’s “regular rate” for overtime purposes if the employee is paid a salary?  The regular rate is (unlike an hourly rate), an hourly rate that is determined by actual hours worked and actual monies paid to the employee for a workweek.

To determine the regular rate for any workweek (for a salaried employee), divide the total compensation paid to the employee in the weekly payroll by the total number of hours actually worked in that workweek.  For example: $500/40hrs = $12.50 (regular rate).  $500/45hrs = $11.11 (regular rate).  $500/50hrs = $10.00 (regular rate).  As I noted above, the overtime rate will actually decrease with each additional hour worked.  Thus, the overtime rate for working 45 hours in this example is $11.11 x 1.5 = $16.66.  The overtime rate for 50 hours is 10 x 1.5 = $15.  While this seems odd (that the employee actually gets paid less overtime the more he or she works), the trade off is that the employee makes his or her salary even when working less than 40 hours in a workweek.  Otherwise, if the employee was a straight hourly worker, let’s say $12.50/hr, the overtime is always going to be $18.75, but the employee will only get paid for actual hours worked at the $12.50.  So, if the employee only worked 30 hours in a workweek, the employee would only get paid $375 that week versus the $500.

Also, many employers have pay periods of two week or more.  In this case, the “regular rate” still needs to be broken down to a workweek.  In the case of a semimonthly salary, multiply the salary by 24 (number of payrolls in the year) and divide by 52 (number of weeks in the year).  In the case of a monthly salary, multiply the salary by 12 (number of payrolls in the year) and divide by 52 (number of weeks in the year).  If the employee agrees, the regular rate for a monthly salary may also be determined by dividing the number of working days in the month and then by the number of hours of the normal or regular workday.  I know you know this, but again, the resulting regular rate may never be less than minimum wage for a non-exempt employee (even if salaried).

Step 3: Pay the Employee Additional Overtime After a Non-Discretionary Bonus

Finally, if a non-exempt employee is paid a non-discretionary bonus, that bonus must be layered into the corresponding pay period and included in the “regular rate” (hourly rate) in order to determine the rate for overtime. Remember, as I noted above, the regular rate is used to determine the overtime rate – and the regular rate is determined based on “actual” compensation – which includes all compensation paid to the employee for work (even if that compensation is paid in a later payroll).  Non-discretionary bonuses are compensation paid to the employee for work – unlike discretionary (“just because”) bonuses – such as holiday bonus, summer bonus, whatever.  I won’t lie – this is an administrative nightmare for your accounting team.  For example, the employer must determine what workweeks the bonus is related to (monthly bonus, quarterly bonus, something else?), and then add that compensation to the already earned compensation for that time period, then pay additional overtime for the overtime hours worked during that time period on the now-increased regular rate.  While daunting – it can be done – and in the case of these paraprofessionals who are not often given a nondiscretionary bonus, it can still be worth it.  See my post here for a step-by-step on this process: Paying An Additional Overtime Premium After Paying An Additional Overtime Premium.

So, there you have it.  Three easy steps – (1) pay the salary; (2) pay the overtime based on the regular rate; and (3) pay the additional overtime on any non-discretionary bonus paid.  Voila!

Aerial_photo_of_downtown_Minneapolis

On May 27, 2016, the Minneapolis City Council unanimously approved the Minneapolis Sick and Safe Time Ordinance, Title 2, Chapter 40 – Workplace Regulations.  The final Ordinance mandates unpaid sick and safe leave for employers with 1 to 5 employees, and paid sick and safe leave for employers with 6 or more employees. Notably, the final amendment includes not only the use for sick and safe care, but also school snow days.

Below is a quick overview of what the ordinance requires, who it applies to, what burdens employers have, and the implications of a violation. However, time will only tell how this plays out in reality.

What Does the Minneapolis Sick and Safe Time Ordinance Require?

The Ordinance, effective July 1, 2017, requires employers to provide employees with paid/unpaid sick and safe time.  New employers (with 1 or more employees), will have 12 months to provide unpaid time off. After 12 months, new employers will be subject to the Ordinance in its totality (this 12 month delay will only be allowed for 5 years from the enactment).

Employees working in Minneapolis will accrue sick and safe time unpaid leave at the rate of 1 hour for every 30 worked, up to an annual cap of 48 hours (either calendar or fiscal year). Exempt (salaried) employees are deemed to work 40 hours each week unless their normal workweek is less than 40 hours.  Employees must be allowed to use sick and safe time after 90 calendar days of employment.  Employers must permit an employee to carry over at least 80 hours of accrued but unused sick and safe time into the following year.

Additionally, sick and safe leave time need not be paid this time out at termination. Employees must be able to use the leave in the same increment of time consistent with current payroll practices and existing employer policies (but no more than 4 hours).  They must be compensated at the same hourly rate with the same benefits (except they are not entitled to lost tips or commissions and compensation is only required for the hours the employee was scheduled to work).

Who Is An “Employer” and “Employee” Under the Ordinance?

Does this Ordinance affect your business based in Eden Prairie or Alexandria?  It depends on whether you are a covered employer, defined below.  The Ordinance defines several terms with specificity, but here it is in a nutshell: Continue Reading Minneapolis Sick and Safe Time Ordinance Approved – Snow Days Covered

Alton_National_CemeteryAs Memorial Day weekend arrives, I wanted to take a minute to remember those who have sacrificed themselves so that we may have many of the freedoms we take for granted today, such as the ability to write whatever we want on the internet.  In addition, I want to thank all the military spouses and families out there who have more strength than many of us know or can even appreciate.  So, we remember, and thank you.

This leads me to blog today about time off for military service, and time off to care for servicemembers in Minnesota.  Specifically, the FMLA was amended in 2008 to add two military family leave entitlements – (1) qualifying exigency leave; and (2) military caregiver leave.  I’ll touch briefly on both below.   As for my Friday Fun Fact…here it is, compliments of the History Channel: Memorial Day was originally known as Decoration Day in 1868 (to decorate the graves of fallen soldiers), and didn’t become an official federal holiday until 1971.

Who Is A “Covered Servicemember”?

A “covered servicemember” is someone who is: (1) a current member of the Armed Forces (including National Guard or Reserves); or (2) a veteran who was discharged or released under conditions other than dishonorable at any time during the 5 year period prior to the first date the eligible employee takes FMLA leave to care for the veteran.Tammy_Duckworth_wheelchair

Who Is Eligible For Leave?

To be eligible for one of these FMLA military leaves, the employee must have worked for a covered employer (private company with 50 or more employees) for 12 months and at least 1,250 hours in the 12 month period prior to the leave.  Further, that employee must work at a location where the covered employer has at least 50 or more employees within 75 miles of the employee’s worksite.

FMLA “Qualifying Exigency” Leave

The FMLA provides that when a spouse, parent, son or daughter who is a military member is deployed (or notified of impending deployment to a foreign country), an eligible employee may be entitled to an unpaid “qualifying exigency leave”.   Continue Reading Time Off For Military Caregiver Leave or Exigency Leave