Perspectives

The onslaught of new employment related laws in Minnesota has kept our phone lines pretty busy! Many of the new laws took effect January 1-but employers are still scrambling to determine how the law applies to them. So let’s address some of the common questions we’re getting:

What exactly IS earned sick and safe time?

ESST (Earned Sick and Safe Time) is paid leave employers must provide to employees in Minnesota that can be used for certain reasons, including when an employee is sick, to care for a sick family member or to seek assistance if an employee or their family member has experienced domestic abuse, sexual assault, or stalking. ESST must be paid at the same hourly rate an employee earns when they are working.

Who is eligible?

An employee is eligible for ESST if they:

• work at least 80 hours in a year for an employer in MN
• are not an independent contractor

Temporary and part-time employees are eligible for ESST.

How do you accrue and use ESST?

• Employees can accrue at least one hour of ESST for every 30 hours worked, unless an employer front loads ESST hours as allowed by law.
• ESST begins accruing on the first day of work and employees are allowed to use ESST as it accrues.
• Employers must allow an employee to accrue at least 48 hours of ESST to the net year up to a maximum accrual of at least 80 ESST hours.
• Employers can require documentation from employees with ESST used for more than three consecutive days.

What can you use ESST for?

ESST can be used for reasons that include:

• The mental or physical illness, treatment or preventative care of an employee or their family member;
• Absence due to domestic abuse, sexual assault or stalking of an employee or their family member;
• Closure of an employee’s workplace due to weather or public emergency or closure of their family member’s school or care facility due to weather or public emergency.

In 2024 consulting with an employment law attorney is not just a precautionary measure, it’s a strategic business decision to safeguard the interests of both employers and employees. As you navigate the complex and ever-changing laws, a proactive approach to legal compliance becomes paramount in fostering a workplace that values the well-being of its workforce.

Wagner, Falconer & Judd offers a number of ways to partner with us for all your business needs. Reach out to us today for a consultation, or visit our Support Services page to learn more about our offerings.

The Age Discrimination in Employment Act (ADEA) was enacted in 1967 to protect individuals over the age of 40 from discrimination in the workplace. However, despite the ADEA’s existence, age discrimination still pervades the job market, often hidden beneath vague job descriptions and euphemistic language. One such case is the use of the term “early career” by HR departments, which some argue can be code for illegal age discrimination. Recently, one company, Lilly USA, LLC, settled a nationwide class action lawsuit, agreeing to pay $2.4 million and provide other equitable relief related to their “Early Career” hiring initiative, which included an expressed preference for hiring millenials.

In this blog, we will explore how the “early careers” hiring preference might violate the ADEA, and what steps can be taken to address this issue.

The ADEA’s primary objective is to ensure that individuals are evaluated and compensated based on their skills and abilities rather than their age. It makes it unlawful for employers to discriminate against employees or job applicants on the basis of age. Despite this legal protection, age discrimination persists in the job market, and one way it often materializes is through a stated or implicit preference for “early career” employees. Employers frequently include the term “early career” in job descriptions and job postings, which on the surface might seem like a harmless way to describe entry-level positions. However, this seemingly innocuous term can, in fact, mask age discrimination. It creates an implicit bias against more experienced workers, often older employees who are deemed “overqualified” or too costly to employ.

Further, using the term “early career” as a preference in hiring can be seen as a veiled form of age discrimination. When employers emphasize hiring early career professionals, they may inadvertently favor younger applicants over more experienced candidates, irrespective of their qualifications and capabilities. This preference can result in older workers feeling marginalized and excluded from job opportunities. It can also discourage older workers from applying for positions they are well-qualified for. This creates a chilling effect where older job seekers may not even bother to apply because they believe that their age puts them at a disadvantage.

To combat age discrimination in hiring and to decode the “early career” conundrum, several steps can be taken:

Awareness and Education

First and foremost, it’s crucial to raise awareness about the issue. HR departments should be educated about the potential implications of using “early career” in job postings and encouraged to be more mindful of their language to ensure it does not inadvertently discriminate against older workers.

 Reframing Job Descriptions

Employers should consider reframing their job descriptions to focus on the skills and qualifications required for the position rather than using age-related terms. This shift in language can attract a more diverse pool of applicants.

Scrutiny of Hiring Practices

Regular audits of hiring practices can help identify and eliminate age-related bias. Employers should ensure that all applicants are given a fair chance and that their qualifications are the primary consideration in hiring decisions.

While the use of “early career” in job descriptions may not be an explicit form of age discrimination, it certainly raises concerns about implicit bias and the exclusion of older, experienced workers from job opportunities. Addressing this issue requires a collective effort from employers, HR departments, and job seekers to promote fairness and equal opportunity for all, regardless of age. The ADEA remains an important legal safeguard against age discrimination, but it is also crucial to address subtle, coded language in job postings to ensure that age discrimination is eradicated from the hiring process.

The ensure your job postings, employee handbooks, and subsequent policies and forms are using clear, unambiguous language, partnering with Wagner, Falconer & Judd for an HR & Compliance consultation is a simple way to mitigate risk and protect your business-and employees.

In what is likely to go down as one of the busiest legislative sessions for employment-related laws in Minnesota history, employers have been left with a lot to unpack. From legalizing recreational marijuana, banning non-compete agreements, and passing both paid sick and paid family and medical leave laws, the hits just kept coming. However, while some of these law changes were well-publicized, a few others have flown under the radar. These include expanding the Minnesota Parental Leave Act (“MPLA”), passing additional protections for pregnant and nursing mothers, and enacting a salary history ban.

Starting on July 1, 2023, employers with just one or more employees must provide unpaid leave under the MPLA. Previously, only employers with 21 or more employees needed to provide this leave. Further, where employees only became eligible for MPLA leave if they worked for an employer for one year and at least half-time, those prerequisites are gone as of July 1.

Additionally, the Minnesota statute that provides pregnancy accommodations and protections for nursing mothers, Minn. Stat. § 181.939, now applies to any employer with one or more employees, effective July 1, 2023.

Further, additional examples of reasonable accommodations for pregnant employees were added to the statute and include temporary leaves of absence, modifications in work schedules or job assignments, and more frequent restroom breaks.

The law changes also expanded nursing mother protections by:

1. Removing the limitation that only allows nursing mothers break times to express breast milk for 12 months following the birth of their child;

2. Removing the exemption employers could previously use to deny lactation breaks if they would unduly disrupt an employer’s operations;

3. Amending the statute to state that lactation breaks may, instead of must, run concurrently with any breaks time the employer already gives.

Employers must also provide notice to employees both at the time of hire and if an employee asks about parental leave. Companies that provide employee handbooks must also add information about parental leave rights in the handbook.

Last, beginning on January 1, 2024, employers may no longer inquire into a job applicant’s salary history. These salary history bans have been enacted across the United States to stem the tide of pay inequity. The thinking behind these bans is that if an employee has been historically underpaid due to their protected class status, a new employer, upon learning of the applicant’s salary history, will likely perpetuate that wage inequity by offering a wage that is lower than it may have been without that knowledge. While applicants can still volunteer information about their salary history, employers can only use that volunteered knowledge if the net result is the employer offering a higher wage than what was initially offered by the employer.

As should be clear by now, Minnesota employers have a lot of changes to learn about and prepare for. It is a good time to start reviewing existing employee handbooks and other policies to ensure compliance in the days and months ahead. For more information on how the Employment Law team at Wagner, Falconer, & Judd can improve your HR compliance, reach out to us today!

With the recent closure of Silicon Valley Bank, employers may feel the pressure of liquidity issues, which in turn could impact their ability to pay employees on time or operate their compensation/benefits programs.

Three key considerations to focus on when evaluating your company’s internal finances are payroll, furlough, and benefits. These will effect your employees’ day-to-day lives, and eat up most of your HR staff’s time.

Payroll/Employee Communications:

Communicate immediately with employees regarding potential delays in payroll timing and provide prompt updates on changes. If you’re switching payroll to another financial institution, ensure compliance with existing wage rules that are designed to prevent changes to employee’s elected methods of payment without their consent. To the extent the employer cannot timely make payroll, consider furloughing or terminating employees.

Benefit Plans:

Review health and welfare benefit plans, contracts and arrangements to determine whether missed or late payments by the employer to third-party providers may cause a lapse in benefits/insurance coverage for employees (or otherwise impact coverage).

Fair Labor Standards Act:

Many employers impacted by the SVB closure are faced with difficulties in making payroll. Most employers are covered by the Fair Labor Standards Act (“FLSA”), which governs federal wage and hour standards. Covered employers have several obligations under the FLSA, including ensuring nonexempt employees are paid (a) minimum wage for all hours worked and (b) overtime for all hours worked in excess of 40 hours in any workweek. There is no explicit deadline in the FLSA itself with respect to the payment of wages. Nevertheless, the U.S. Department of Labor’s (the “DOL”) position is that FLSA-mandated sums earned for a workweek generally must be paid on the regular payday for the pay period in which the workweek ends. Currently there is no available waiver, or exemption, for noncompliance resulting from bank closures.

An employer that repeatedly or willfully violates the minimum wage or overtime pay requirements of FLSA is subject to a civil penalty of up to $1,100 for each violation. For any violation (including isolated or inadvertent violations), the employer is liable to the employee for the amount of unpaid wages and overtime pay, if any, plus an equal additional amount paid as liquidated damages. There is no requirement that the affected employee show harm beyond the late payment.

In addition to potential penalties for compliance failures under FLSA, employers may also face penalties in connection with failure to timely remit the employer portion of taxes, which includes federal income tax, Social Security and Medicare taxes and Federal Unemployment Tax. There are penalties for untimely, inaccurate, or improperly paid employment taxes, imposed based on the number of days the taxes are overdue.

State Wage Laws:

In addition to complying with wage payment obligations under FLSA, employers must also comply with applicable state wage laws or risk additional fines and penalties. Unlike FLSA, many states impose specific intervals for paying employees (e.g., weekly, bi-weekly, etc.), which may vary depending on an employee’s role or function or the industry in which they work. Penalties for failing to comply with state wage laws vary by state and can include liquidated damages and attorney’s fees.

Furloughing Employees:

In connection with similar liquidity crises, employers have considered employee furloughs as an alternative to layoffs until they can resolve their liquidity issues. Furloughs generally refer to a mandatory, but temporary, cessation from work without pay, with the expectation that the impacted workforce would return to work with the employer in the future.

Health Benefits and COBRA:

Employers that sponsor group health plans should consider whether a furlough would allow employees to continue to participate in employer-provided health benefit plans as “active” participants without requiring participants to elect benefits under COBRA. The determination will depend on the terms of the applicable plan and the underlying insurance policies maintained by their plan carrier.

Qualified Defined Contribution Retirement Plans:

A furloughed employee will generally be considered an active participant in the retirement plan and will not be considered to have experienced a “severance of employment.” Therefore, the employee would not qualify to take a termination distribution from the retirement plan. Further, furloughed employees would not qualify to take a termination distribution from the retirement plan termination assessment. Furloughed employees who are considered active participants may, subject to applicable plan terms, receive plan loans (or have existing loans remain outstanding) or in-service distributions.

Other Benefits:

Employers should also carefully review and assess the impact of furloughs on company participation in, and elections made under other benefit plans, including flexible spending accounts. A furlough may be considered a qualifying event triggering an employee’s ability to make mid-year election changes under a flexible spending account.

Labor Law and Contract Considerations:

When determining which employees to furlough, it is important for employers to use objectively defined and non-discriminatory categories of employees, to mitigate arguments of disparate impact and retaliation.

Further, employers with 100 or more employees need to be aware that under the federal Worker Adjustment and Retraining Notification Act of 1988 (“WARN Act”), employers are required to provide 60 days advance written notice to terminated employees in the event of a “plant closing” or “mass layoff.”

Under the federal WARN act, notice obligations are not triggered if employees will be furloughed for fewer than six months. However, a furlough that exceeds six months or a reduction of hours by 50% for six months or more will constitute an “employment loss” and trigger WARN’s notice obligations.

Several states that have adopted “mini-WARN” laws have similar exceptions for unforeseeable business circumstances to the WARN Act, such as New York. Employers should review the applicable local, state, and federal notice requirements before furloughing any employees.

The expense of missing payroll, or letting your employee’s benefits lapse could be detrimental to your business, especially during times of economic distress. The attorneys at Wagner, Falconer and Judd have decades worth of experience navigating the ever-changing legal obligations employers face, and are only a phone call away to help you ensure your employees, and your bottom line, are protected. Visit our Support Services page to schedule a consultation with one of our attorneys.

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. 

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.