Perhaps not our most intriguing information share to date, but still equally important. Come the New Year, do you know which of your business states will be due for a minimum wage increase? If you answered no, then you’re in luck—below is a compiled list of all the US states with planned minimum wage increases to have on your radar. If your state is not listed, then this year you have one less policy to update.

• Alaska
  • Minimum wage increases to $10.85
• Arizona
  • Flagstaff minimum wage increases to $16.80
  • Tucson minimum wage increases to $13.50
• California
  • Statewide minimum wage increases to $15.50
• Colorado
  • Statewide minimum wage increases to $13.65
  • Denver minimum wage increases to $17.29
• Connecticut
  • Statewide minimum wage increases to $15.00
• Delaware
  • Statewide minimum wage increases to $11.75
• Illinois
  • Statewide minimum wage increases to $13.00
  • Chicago minimum wage increases to $15.00 for employers of 4 to 20 employees
• Maine
  • Statewide minimum wage expected to increase to $13.80 based on the anticipated Consumer Price Index adjustment
  • Portland minimum wage increases to $14.00
  • Rockland minimum wage increases to $14.00
• Maryland
  • Statewide minimum wage increases to $13.25 for employers of 15 or more employees and $12.80 for employers of 14 or fewer employees
  • Howard County minimum wage increases to $15.00 for large employers (15 or more) and $13.25 for small employers (14 or fewer)
• Massachusetts
  • Statewide minimum wage increases to $15.00
• Minnesota
  • Statewide minimum wage increases to $10.59 for large employers (annual gross sales of $500,000 or more) and $8.63 for small employers (annual gross sales of less than $500,000)
  • Minneapolis minimum wage increases to $15.19 for employers with 100 or more employees
  • St Paul minimum wage increases to $15.19 for macro employers (those with more than 10,000 employees)
• Missouri
  • Statewide minimum wage increases to $12.00
• Montana
  • Statewide minimum wage increases to $9.95
• Nebraska
  • Statewide minimum wage increases to $10.50
• New Jersey
  • Statewide minimum wage increases to $14.13 for most employers (those with 7 or more employees) and $12.93 for small (those with 6 or fewer employees) and seasonal employers
• New Mexico
  • Statewide minimum wage increases to $12.00
  • Albuquerque minimum wage increases to $12.50
  • Las Cruces adopts the statewide minimum wage as of January 1, 2023
• Ohio
  • Statewide minimum wage increases to $10.10 for employers generally and remains at the federal minimum wage ($7.25) for businesses grossing less than $372,000 annually.
• Rhode Island
  • Statewide minimum wage increases to $13.00
• South Dakota
  • Statewide minimum wage increases to $10.80
• Virginia
  • Statewide minimum wage increases to $12.00
• Washington
  • Statewide minimum wage increases to $15.74
  • City of SeaTac minimum wage increases to $19.06
  • Seattle:
    • $18.69, for employers of 501 or more employees.
    • $16.50, for employers of 500 or fewer employees that contribute at least $2.19 an hour to the individual employee’s medical benefits and/or the employee earns at least $2.19 an hour in tips.
    • $18.69, for non-qualifying small employers.

There is a dedicated team at Wagner, Falconer & Judd that can help you simplify your HR needs. Check out our Support Services options to see if we are a fit for you! 

What’s going on with the EEOC? On October 19th 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released their new ‘Know Your Rights’ poster, which replaces and clarifies the historically required “EEO is the Law” poster. As with the original poster, covered employers are still required by federal law to prominently display the poster at their work locations. If unsure what spot could classify as “prominently displayed”, the EEOC states that posters should be placed in a conspicuous location in the workplace where notices to applicants and employees are normally posted. In addition to physically posting, employers are encouraged to post a digital notice on their employee websites in an obvious location. These two steps can help employers avoid any applicable fines for non-compliance.

Most employers are familiar with the EEOC poster and the laws it summarizes. Contained within we find summaries of federal laws prohibiting job discrimination, and the steps for filing a charge if an employee believes they have experienced discrimination. The poster shares information about discrimination based on:

• Race, color, sex, national origin, religion,
• age (40 and older),
• Equal pay,
• Disability,
• Genetic information (including family medical history or genetic tests or services), and includes
• Retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

So at this point you’re probably saying, “I knew all of that, what’s changed?” Most prominently added to the new ‘Know Your Rights’ poster is a familiar square that’s becoming more common in our fast-moving lives today. The square is a QR code, and it allows for applicants or employees to scan the QR code and be directed to instructions for how to file a charge of workplace discrimination with the EEOC. There is speculation that the increasing ease of filing a charge will correspondingly increase the number of employee EEOC charges.

Additional changes to the poster are intentional clarifications which could also lead to an increase in EEOC charges against employers. The clarifications include:

• Use of straightforward language and formatting, such as bullet points;
• Explanation that harassment is a prohibited form of discrimination;
• Clarification that sex discrimination includes discrimination based on pregnancy and related conditions;
• Addition of language regarding sexual orientation and gender identity discriminations;
• Inclusion of information about equal pay discrimination for federal contractors.

Why do we think this is important enough to share with you? Our thoughts echo those of EEOC Chair Charlotte Burrows who said in a statement that “The new ‘Know Your Rights’ poster is a win-win for employers and workers alike. By using plain language and bullet points, the new poster makes it easier for employers to understand their legal responsibilities and for workers to understand their legal rights and how to contact EEOC for assistance.”

This is a good time for employers to ensure all required posters are being properly displayed and that employee handbooks and workplace policies are up to date an in compliance with recent changes to federal EEOC law. Also, employers should remember that in addition to using the QR code to file a charge with the EEOC, all of the original methods for filing a charge remain, including online via the EEOC Public Portal, in person at an EEOC Office, by telephone, at a State or local Fair Employment Practice Agency or by mail.

Follow Wagner, Falconer & Judd on LinkedIn to stay up-to-date on news like this from our experienced Employment Law group. 

When does a school have a duty to do an initial evaluation to determine if a child is in need of special education services? Is your school district “dragging their feet” and not conducting an educational evaluation for your child?

All school districts have a child find duty under the Individuals with Disabilities Act (IDEA). The IDEA states that a state’s education agency, other state agencies, or local educational agency shall conduct a full and individual initial evaluation before providing special education and related services. This mandate applies to all children in a school district from birth through age 21.

Often we find that school districts will “discuss” with parents a child’s struggles, but there seems to be a lag in getting an evaluation done to determine a child’s potential need for services. If no evaluation is done, no services can be provided, so what is a parent to do to get the evaluation done? How can the school take so long to complete an evaluation when a child is struggling?

Minnesota Statute 3525.2550 states that a school must conduct an evaluation within a “reasonable time” not to exceed 30 school days from the date the district receives parental permission to conduct an initial evaluation. The IDEA section 1414 (c)(i) states that a district has 60 days, after receiving parental consent for an evaluation to determine if a child needs services.

How can these provisions work together? First, it is important to note the 60-day deadline under the IDEA is not limited to “school days”. Therefore, the school district has a duty to conduct evaluations even during the summer if the 60 days will end during the summer. Second, the Minnesota statutory 30 school days deadline applies when school is in session and shortens the 60-day federal rule. Collectively, the school has until the end of whichever deadline comes first to complete an initial evaluation after parental consent for an evaluation is provided.

So what is parental consent?

Parental consent can be as simple as a written letter to the school saying, “I think my child has need for services and I give you permission to evaluate my child.” If you simply call the school, chat with a teacher, etc. the school will argue that the deadline did not start because they don’t have written evaluation plan signed by a parent. yes, a written plan is better than blanket permission to evaluate a child, but it is not required under the law to start the clock running on the 60 and 30-day deadlines. You do not have to wait for the school district to develop a written plan, present it to you, and then get your approval. Send your approval right away! Some school districts seem to drag their feet and the time they have to evaluate a child by taking a long time to develop a plan for evaluation and failing to see parental consent on their plan. This is not acceptable.

In a recent Minnesota case (M.J.C. ex rel. Martin v. Special Sch. Dist. No.1, Minneapolis Pub. Sch., No. CIV. 10-4861 JRTTNL, 2012 WL1538339, at *8) the school district argued that it made a good faith effort to evaluate a child that was obstructed by the parent. However, the court held that the district failed to produce an evaluation plan in writing and that failure contributed to the child not being evaluated, thus causing the child find violation.

If you have been struggling to find workers lately, you aren’t alone. High inflation and low unemployment have given prospective employees more bargaining power and desire for higher wages. Some of the industries hit hardest are hospitality (including restaurants and hotels), care facilities, and construction and trade jobs.

With background checks and drug tests disqualifying some otherwise qualified candidates, old patterns of thinking may have to change (although if DOT or other federal law governs your industry, this not the advice for you!)

Here are four strategies that may increase your applicants and fill roles sooner:

All in all, companies that take the time to create a good work environment for current and prospective employees will likely have an easier time finding (and retaining) good workers.

Classifying workers as independent contractors is not as easy as issuing a 1099 instead of a W-2 at tax time.  Rather, there are a variety of factors employers must analyze regarding each of their independent contractors to ensure they are properly classified.  And the risk of improper classifications can be steep.  However, the Fifth Circuit Court of Appeals, covering Texas, Louisiana, and Mississippi, recently proved it is not impossible.

In the case, which can be found here, an attorney working as a consultant for an oil and gas company filed suit under the Fair Labor Standards Act (FLSA), alleging that he was improperly classified as an independent contractor and seeking to recover unpaid overtime.  The court, in analyzing whether the attorney was an “employee” for purposes of the FLSA, examined the attorney’s working relationship with the company under the framework of the following five non-exhaustive factors:

• The degree of control exercised by the alleged employer;
• The extent of the relative investments of the worker and the alleged employer;
• The degree to which the worker’s opportunity for profit or loss is determined by the alleged employer;
• The skill and initiative required in performing the job; and
• The permanency of the relationship.

Ultimately, the court ruled that the attorney was properly classified as an independent contractor because he signed an “Independent Contractor Master Consulting Services Agreement,” worked independently and managed his own workload and schedule, was not expected to be at the office during set hours each day, did not receive performance evaluations or an access key card, supplied his own computer and telephone, paid for his own continuing legal education courses, purchased his own home office equipment, and could select which projects he wanted to work on.  Because the attorney was an independent contractor and not an employee under the FLSA, he was not entitled to overtime wages.

Companies that utilize the services of independent contractors would be wise to review their working relationships with contractors to ensure they are properly classified under not just the FLSA test, but also the IRS test and any applicable state law tests.

To learn more about protecting your business and your employees, contact the Employment Law group with WFJ today!

In a move that stunned even some Minnesota lawmakers who voted yes, Minnesota Governor Tim Walz signed H.F. 4065 into law, legalizing the sale and consumption of “edible cannabinoid.” The law mandates that the edibles do not contain more than a legally proscribed amount of THC, the THC be derived from hemp, and that the product be edible, either through food or beverage.  It is important to remember that Minnesota law still prohibits the use of recreational marijuana, and only individuals who are on the Minnesota Medical Cannabis Registry may use marijuana medicinally.

Unfortunately, the statute does not provide much guidance for employers.  The most critical questions revolve around employer drug testing and whether companies must accommodate employee use of edibles.  For example, Minnesota law prohibits employers from discriminating against employees based on their status on the Medical Cannabis Registry.  Whether further laws will be passed to provide this same level of protection for edibles remains unclear.

Further, individuals might use hemp-derived edible products to alleviate symptoms associated with anxiety, PTSD, or other medical conditions.  For this reason, if an applicant or employee fails a drug test, an employer may need to consider accommodating an employee’s use of edibles to avoid disability discrimination claims.

It also remains difficult to gauge current marijuana intoxication. THC and its metabolites are often stored in a body’s fat cells, which means THC can remain detectable for up to 30 days after use.  Until tests like those used to test for alcohol can be developed, determining whether an applicant or employee is currently intoxicated for purposes of a pre-employment drug screen, or while working on an employer’s premises, is difficult, if not impossible.  Minnesota law allows employees to use lawful products during non-working hours, so employers may consider removing TCH from its drug test panel and focus, instead, on prohibiting use during working hours and on company property.

The bottom line is that without much guidance from the statute itself, employers must consult knowledgeable counsel to determine what drug-free workplace policies should look like in wake of H.F. 4065.

Mediation is when a neutral third party, called a mediator, works with each party in a lawsuit to reach a compromise before going to trial. The mediator will point out issues in the case or areas of weakness and the benefits of settling. Some of the benefits of settling include, less stress, fewer expenses, and a faster agreement. And unlike judge or jury decisions, settlements cannot be appealed, this allows you to achieve finality on the case so you can move on with your life.

Because of all these benefits, judges almost always order parties to mediate the case before going to trial. Even when a judge doesn’t order mediation, parties often agree to mediate to save the expense and stress of going to trial.

The attorneys at Wagner, Falconer & Judd are skilled at translating legalese for our clients, and are here to help you navigate the complex legal process. If you think you could benefit from our services, reach out today. Having a dedicated attorney on your side is always a good plan!