Taking the time to develop a proper hiring process can save you the trouble of a “bad hire” in the long run. The Society for Human Resource Management estimates the cost to replace an employee is six to nine months of the employee’s salary. And that’s just the cost if that employee simply leaves. If you are found to have used discriminatory interview tactics, it could cost you much more. That’s why our employment law attorneys recommend companies adopt a standard procedure for all new hires.

A few things to consider:

Define the Position

• Make sure that you know what the job actually is
• Create a job description. Or if one exists, make sure that it is up-to-date
• What qualifications are required?
• What are the essential functions?
• What are the non-essential functions?
• Are there physical requirements?
• Where do they fit in the org chart?
• Determine salary range and any special benefits package the position qualifies or doesn’t qualify for
• Determine hiring team
• Who is the hiring manager?
• Who will be involved from HR?

Post the Opening

• If affirmative action is applicable, the employer should be sure to include appropriate targeted recruitment sources

Narrow Down Job Applications

• Apply consistent rules to completion of application form
• Determine if pre-interview testing is needed (e.g., typing words per minute, specific aptitude or personality tests)
• Document selection process
• Identify criteria used
• Identify who was involved in decision making process
• Keep records
• Extend interview invitations

Interviewing

• Choose interview types, and determine the number of interviews you will conduct
• Who will conduct them?
• Ensure interviewers are aware of proper interviewing technique (e.g., not asking impermissible questions)
• Questions should be:
  • Job related
  • Narrowly-tailored
  • Consistent
• Each candidate should receive the same questions
• Avoid making any promises or statements that could be construed as promises
• These later could be interpreted as offers of employment or promises of employment for a specific period
• Document each interview candidate right after the interview
• Retain records (application and interview notes) for at least 12 months

Offer Position

• Send offer letter after informing candidate on the phone
• Ensure that the offer letter does not undermine at-will status of the position
• Provide wage, start date and key terms of employment
• Communicate with other conditions the offer is contingent on, if any (e.g., background check, drug test, I-9 verification)

Complete Background Check (if necessary)

• Comply with any FCRA requirements on background checks
• Provide written disclosures
• Obtain signature of candidate

Being intentional, and most importantly, consistent in your hiring practices is an important way to mitigate risk for your company and ensure your new hire is the right fit. For more insight on perfecting the hiring process, check out another recent blog from our Employment Law team The Art of Hiring Slow and Firing Fast: A Guide for Building a Successful Team .

Prenuptial agreements aren’t just for the rich & famous. Like many legal documents, a prenuptial agreement (sometimes also called “Antenuptial Agreements” or “Premarital Agreements”) can save you time, money, and energy in the long run.

What are the benefits of getting a prenup?

The benefits of a prenup are that it allows individuals who are considering marriage to establish their rights, prior to getting married, regarding the division of assets and income if the marriage where to be dissolved and/or one of the partners dies. The agreements should identify what property is and will be considered property of the marriage (marital property) and what property will be deemed separate property (non-marital property). The distinction as to whether property is marital or non-marital has a large impact on property divisions in a divorce and at the time of death for a married person. Prenuptial agreements are particularly beneficial when parties to a marriage have children from prior relationships or interest in closely held businesses.

What are the drawbacks of getting a prenup?

Drawbacks of prenups arise if one party feels taken advantage of, insulted, or uncared for based on the other party requesting a prenup-which can cause strife and distrust within the relationship. Further, a party may think, “this will never matter because we love each other” and not take the agreement seriously when it is drafted. This type of thinking can lead to significant financial concerns if the agreement is enforced.

Why would someone want to get a prenup?

People seek prenups for a variety of reasons. These include selfish desire to try and keep all future income away from a spouse (like you see in TV), but reasonable parties may also get a prenup to provide some level of clarity and comfort in the event the marriage would end prior to death of one party. These agreements can provide assurances to business partners about what will or could happen to a partner’s business interest in the event a business partner’s marriage were to end in divorce. Also, an agreement like this can provide some assurances about how a spouse will have financial protections without the cost of expensive divorce litigation.

What are some reasons that people may not want to get a prenup?

People avoid prenuptial agreements because they feel insulted or worried that they are going to be taken advantage of in such agreements. Also, some people try to hide assets prior to or during marriage-this hiding would cause a prenup to be declared void. Finally, others sincerely believe that such an agreement is in opposition of their closely held beliefs regarding marriage.

Do you recommend couples to get a prenup?

Prenuptial agreements can be particularly beneficial for people entering a marriage where each partner already have some wealth or assets, one party is a partner with a business ownership interest, or there are children from multiple relationships. In these circumstances prenups can help coordinate and assure equitable distribution of assets not just in case of a possible divorce, but also upon one marital partner’s death, saving a lot of expenses, time, and energy among extended and blended family members.

Are there considerations that should be made in addition to getting a prenup before getting married?

You need to be fully transparent of your financial situation prior. If you aren’t, the court may deem the agreement null and void.

Important terms you should know:

Financial Disclosures: One of the most important provisions of a prenup is declaring financial assets and liabilities. This means bank accounts, investments, real estate, debts, and other financial obligations.

Division of Property: How the assets are divided in the event of divorce. Comprises of anything from bank accounts and investments to property and personal belongings. In some circumstances, certain assets may stay separate property and not be subject to division in a divorce.

Debt Obligations: Prenups can address debt obligations, including debt incurred during the marriage. Credit card debt, mortgage payments, and other financial obligations can be included. Without this, the couple may have to rely on state laws to determine who is responsible for paying off the debt.

Spousal Support (Alimony): This provision can specify how much support will be paid and for how long. It can also include any conditions or circumstances under which spousal support may be modified or terminated.

Inheritance Rights: Prenups can also address inheritance rights, including how the couple’s assets will be distributed upon one spouse’s death. This can specify which assets will be inherited by whom, and include any conditions or restrictions on inheritance.

Business Interests: For couples who own businesses or have significant business interests, a prenup can be used to protect those assets in the event of a divorce. It can include provisions for the division of business assets and restrictions on the sale or transfer of those assets.

Importance of Common Prenup Terms

Legal Enforceability: Incorporating common terms in a prenup is an effective way to ensure the agreement is legally enforceable and won’t leave the decision in the hands of the courts.

Protection of Assets: Including the common terms ensures both parties understand their financial obligations and agree to the prenup terms. This protection is crucial for couples with significant assets, inheritance, or business ownership.

Clarity and Certainty: Adding these terms provide clarity and certainty. The provisions define specific terms and conditions, which help to prevent misinterpretations and conflicts. This clarity and certainty are specifically essential in the case of a divorce, where emotions may be flying high, and conflicts may be more likely.

Common Prenup Agreement Clauses

Property Division: Specifies how the couple’s property will be divided in the event of a divorce or separation. It may include details about the distribution of the real estate, bank accounts, investments, and other asset

Spousal Support: This clause outlines the amount and duration of any spousal support paid by one party to the other in case of a divorce or separation.

Debts: Determines how any debts incurred during the marriage will be divided between the spouses in the event of a divorce or separation

Inheritance Rights: Specifies whether either spouse will be entitled to inherit the other’s assets in the event of death or divorce

Business Interests: If one or both spouses own a business, this clause may specify how the business will be divided in the event of a divorce or separation

Custody and Support of Children: If the couple has children, this clause may specify how custody and child support will be handled during a divorce or separation

Infidelity Clause: May include penalties or financial consequences if spouses engage in extramarital affairs.

If you have more questions about whether a prenuptial agreement would be right for you, reach out to us today to be connected with an attorney.

Intestate:

If you die without a will, it is called “dying intestate” or “intestate succession”. Without proper estate planning, state law and statutes will determine how your estate is distributed. Even if you don’t have many assets, dying without a will can leave behind issues for your spouse or children. If you have minor children, it will not address who you want to care for them or handle their financial affairs. It can also impact benefits of a special needs child. And if your estate needs to go through the probate process? Without a will, you will not be able to choose who administers your estate. Which could leave your assets in the hands of someone who may not be equipped to take on that responsibility.

Power of Attorney:

A power of attorney is a legal document that allows someone else to act on your behalf to handle your financial and property matters. Putting a Power of Attorney in place proactively can save you headaches, hassle and money in the future. A financial POA helps you put a plan in place for your finances should you become incapacitated due to dementia, traumatic brain injury, or other impairment that could affect your mental function. Financial POA’s can be “durable” (made in advance as part of your larger estate planning efforts) or temporary. For example, a servicemember being deployed can create a POA to pay their bills, manage their property or handle other financial business in their absence. If you don’t create a POA in advance, a friend of family member might have to go to court to have a guardian appointed if you become incapacitated and are no longer able to make decisions for yourself. That can be very costly and public.

Health Care Directive:

A Health Care Directive can work hand-in-hand with a POA. This document will let you determine who you would like to make medical decisions on your behalf when you are unable to do so. It designates someone to work with your healthcare team when you cannot. Choosing someone to act as your health care agent is important. Even if you have other legal documents in place regarding your care, not all situations can be anticipated, and some situations may still require someone to make a judgment about your care wishes. It is important to choose someone who can be trusted to be your advocate if there are disagreements about your care.

Jointly Held Assets:

Jointly held assets are just what they sound like-assets held in the names of two or more people. Assets held under this agreement have a right of survivorship, which means the assets pass automatically to the survivor upon the death of the first person. These assets can avoid probate in some situations-when couples (married or not) acquire real estate, vehicles, bank accounts, securities, or other valuable property together for example. It’s important to mention that there are risks associated with this arrangement. If the person you are holding the assets with has outstanding debts, their creditors could seize an interest in your home or bank account. Holding a jointly held assets can complicate a divorce or other relationship problems. If you have a jointly held bank account, your co-owner could withdraw all the money without your consent. In all estate planning matters, it’s important to put people you trust in charge of your finance, business, and property matters.

Last Will & Testament:

One of the most common and well known documents available to you in Estate Planning is your last will and & testament.

A last will & testament will guarantee the following:

• You get to designate who you give your estate to
• Your choice of personal representative or executor
• An approved guardian of your minor children

A last will & testament will NOT help you avoid probate.

Living Trusts:

A living trust is a legal document you create during your lifetime to protect your assets and direct your distributions after your death. An appointed trustee works in tandem with you (the grantor) to distribute funds from the trust or control beneficiary assets during your lifetime and after. Unlike a will, a living trust takes effect while you (the grantor) are still living. The trust does not have to go through probate for assets to reach the intended beneficiaries.

There are two primary types of living trusts:

Revocable

The most common type of living trust, it is a trust whereby the person who creates it maintains control over the assets placed within the trust. You can change and amend trust rules at any time. You are also free to change beneficiaries, change the trustee, remove assets, or terminate the trust. Revocable trusts often become irrevocable upon the grantor’s death.

Irrevocable

With this trust, the trust itself owns the assets and the grantor can’t designate themselves as the trustee-giving up certain rights of control of the trust. The trustee effectively becomes the legal owner. The name speaks for itself, once an irrevocable living trust is created, the named beneficiaries are set and the grantor can do little to amend that agreement. Changes may need to be approved by the courts. In addition, you can never take back the assets assigned to an irrevocable living trust.

The benefits of a living trust are:

• Distributes your assets similar to a will
• Can help eliminate or reduce estate taxes
• Can avoid probate
• Can be helpful in certain family circumstances

Most people don’t create an estate plan because they feel like they don’t need one, or it’s too expensive. However, failing to plan now can create major headaches and expenses for your loved ones in the future. Let the attorneys at Wagner, Falconer and Judd assist you as you begin your estate planning journey! Give us a call today to learn more about getting started.

If you missed Part One of our 50 state Legal Update-you can find it here.

On top of pay transparency, cannabis, and paid leave state laws, the National Labor Relations Board ruled on regulations on a federal level.

McLaren Macomb Decision:

On February 21, 2023, the National Labor Relations Board held that a severance agreement that prohibited employees from making disparaging statements about the employer or disclosing the terms of their severance agreement violated Section 7.  The new standard is that a severance agreement violates the NLRA if “its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.”

Employers should review their existing separation agreements and work with counsel to determine how to handle this:

• Remove the provisions all together
• Narrow the restrictions considering what information that the employer needs to protect
• Include disclaimer language, though mileage here can vary
• Do nothing? (and there is the very likely possibility that this decision will be challenged and overturned by the federal courts, but as of the time of publication, no such challenge has been filed.

Non-Competes:

On January 25, 2023 the FTC released a Notice of Proposed Rulemaking that would:

• prohibit employers from utilizing non-compete clauses
• This rule would apply to virtually all employers regardless of size
• And apply to all employees regardless of pay or position-includes independent contractors
• Nationwide in scope

The non-compete clause is defined as contractual term between an employer and a worker that prevents the worker from seeking or accepting employment or operating a business after the conclusion of the worker’s employment. It also requires that employer rescind existing non-competes with workers.

The propose rule:

• Does NOT apply to a person who is selling a business entity
• Does NOT apply to a franchisee-franchisor relationship
• Does NOT ban non-disclosure/confidentiality agreements or non-solicitation agreements
• However, if the non-disclosure agreement is so broad that it would effectively prevent a worker from working in the same field after employment that would be barred.)

Now what?

The original 60-day comment period was supposed to end on March 20, 2023, but the FTC extended that to April 19, 2023. The FTC will adopt a final rule with compliance required 180 days after April 19, 2023-meaning mid-October 2023. However, the FTC is expected to vote April 2024 on the final version of its proposal to ban non-competes. If the non-disclosure agreement is so broad that it would effectively prevent a worker from working in the same field after employment, that would be barred. During that 180-day period, companies would need to assess whether they need to make changes to their restrictive covenants and then negotiate, potentially offer separate consideration for, and enter into new agreements with workers.

There will likely be legal challenges be the enforcement of this rule begins.

Workforce Mobility Act:

A bipartisan group of U.S. senators introduced the bill that would largely ban the use of non-competes under federal law.

It would codify non-compete arguments as an unfair trade practice.

Under the act’s definitions, a “noncompete agreement” mean an agreement entered into after the date of the enactment of the Act between a person and an individual performing work for the person that restricts such individual, after the working relationship between the person and the individual terminates, from performing:

• Any work for another person for a specified period of time;
• Any work in a specified geographical area;
• Any work for another person that is similar to such individual’s work for the person that is a party to such agreement.

AB 2223 would help ensure that no person in our state is ever investigated, prosecuted, or imprisoned for losing or ending their pregnancy. AB 2223 protects reproductive freedom by clarifying that the Reproductive Privacy Act prohibits pregnancy criminalization, removes outdated provisions requiring coroners to investigate certain pregnancy losses, and ensures that information collected about pregnancy outcomes is not used to target people through criminal or civil legal systems.

National Labor Relations Board (NLRB):

On May 30, 2023 the NLRB GC Jennifer Abruzzo issued a memo taking the position that non-compete agreements violate Section 7 rights (Sound familiar?) Per GC Abruzzo, non-competes limit an employee’s ability to find work elsewhere, therefore diminishing their bargaining power for the purpose of concerted action.

It is the job of the General Counsel to prosecute violations of the NLRA, and this statement from Abruzzo serves as a warning to employers that they may face an unfair labor practice charge if they require employees to sign non-competes. However, Abruzzo’s memo is only a statement of her interpretation of the NLRA.

State Non-Compete Limits/ Bans:

On May 24, 2023 Minnesota’s governor Walz signed into law a far-reaching omnibus jobs and economic development and labor funding bill that, among other things, bans employment non-compete agreements signed after July 1, 2023.

On May 4, 2023, Indiana Governor Eric Holcomb signed SB 7 into law, which will render unenforceable all non-compete agreements between employers and primary care physicians entered into on or after July 1, 2023.

Changes to I-9 Procedure:

ICE released early this week that they will not be extending the COVID-19 I-9 verification flexibility again and the flexibility rule is set to end on July 31, 2023 (as announced in October 2022 during the last extension end period.) Along with the flexibility ending, is also a requirement that all employers who took advantage of the COVID-19 related flexibility will have until August 30, 2023, to do in-person verification of employment documents that were only inspected virtually

The Employment Law attorneys at Wagner, Falconer & Judd stay up to date on these laws so you don’t have to. Please reach out to us for consultation if you have questions about how these new regulations effect your current policies. We always recommend ensuring your employment policies stay as up-to-date as possible to help eliminate risk for your business. And we’re here to help!

There are a number of new state and federal laws that are set to take effective this summer-and many effect employers all across the board. Let’s jump into it.

Minimum Wage Increase: (If you missed our last Minimum Wage Update-you can find it here.)

A number of cities and states amended their minimum wage regulations:

• Connecticut: $15.00 (Effective July 1, 2023)
• Florida: $12.00 (Effective July 1, 2023)
• City of Chicago: $15.00 for employers of 4-20 employees (Effective July 1, 2023)
• Montgomery County, MD: %15.00 for employers of 11-50 employees and $14.50 for employers of 10 or fewer (Effective July 1, 2023)
• Minneapolis, MN: $14.50 for employers of more than 100 employees (Effective July 1, 2023)
• St. Paul, MN: $15.00 for employers of 101-10,000 employees and $13.00 for employers of 6-100 employees and $11.50 for employers of 5 or fewer employees (Effective July 1, 203)
• Nevada: $10.25 for employers offering specified health benefits and $11.25 for all other employers (Effective July 1, 2023)

Marijuana Laws:

A few states have adjusted their cannabis laws, and some have decidedly NOT:

Kentucky: On March 31, 2023, Kentucky legalized medical marijuana use. There is no requirement that employers accommodate an employee’s use of medical cannabis and employers can still drug test their employees. (Effective January 1, 2023)

Washington: On May 9, 2023, WA signed a law prohibiting employers from making hiring decisions based on off-duty cannabis use or positive pre-employment drug tests. (Effective January 1, 2023)

Minnesota: On May 30, 2023, MN became the 23rd state to legalize recreational marijuana. This bill includes significant changes to MN’s Consumable Products Act and Drug testing law.

Maryland: MD also passed recreational marijuana legislation. Adults 21 and older can possess up to 1.5 ounces of cannabis flower (Effective July 1, 2023)

But NOT Oklahoma. OK voters rejected a ballot initiative that would have legalized recreational marijuana for adults over 21 years old. It was rejected by a margin of over 20%.

Paid Family and Medical Leave:

Maryland: Regulations regarding Time to Care Act (Contributions begin on October 1, 2023)

Minnesota: MN’s Family and Medical Benefit Insurance Program is effective July 1, 2023 with contributions and benefits available beginning January 1, 2023.

Sunsetting of Paid Sick Leave and COVID-19 Related Leave:

Georgia: Kin Care Law was going to sunset on July 1, 2023 but the governor signed it into law-which will remove the sunset provision.

Los Angeles County: LA County’s Emergency COVID-19 Leave expired on April 14, 2023. The City of LA’s expired on February 15, 2023.

Colorado: COVID-19 related leave provisions expire June 8, 2023.

Minneapolis: New employer waiver sunsets June 30, 2023

Nevada: COVID-19 vaccination leave expires on December 31, 2023

New York: COVID-19 vaccination leave expires on December 31, 2023

Philadelphia: COVID-19 leave and vaccination leave sunsets on December 31, 2023.

Anti-Discrimination Laws:

Minnesota: February 1, 2023 MN governor signed a law to prohibit discriminations based on hair texture and hair styles, commonly referred to as the CROWN Act.

Michigan: House and senate have passed a bill that expands the language of the Elliott-Larsen Civil Rights Act protected categories to include sexual orientation and gender identity or expression. The bill defines gender identity or expression as “having or being perceived as having a gender-related-self-identity or expression whether or not associated with an individual’s assigned sex at birth.” “Sexual orientation” means having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such orientation or being identified with such an orientation.

New York City: On May 25, 2023 enacted an ordinance amending the New York City Human Rights Law to ban discrimination based on a person’s height and weight in employment (as well as housing and public accommodations.)

Texas: On May 27, 2023, Texas Governor Abbott signed into law the CROWN Act, banning racial discrimination based on hair texture or hairstyle in employment, as well as in schools and housing.)

Pay Transparency Laws:

New York State– March 3, 2023 amended its existing pay transparency provisions. This requires employees to disclose compensation or range of compensation for a job, promotion or transfer opportunity that will physically be performed in New York, including for any employee physically located outside the state who reports to someone in New York.  (Effective September 17,2023)

Minnesota– Now prohibits employers from inquiring into an applicant’s salary history (effective January 1, 2024)

The Employment Law attorneys at Wagner, Falconer & Judd stay up to date on these laws so you don’t have to. Please reach out to us for consultation if you have questions about how these new regulations effect your current policies. We always recommend ensuring your employment policies stay as up-to-date as possible to help eliminate risk for your business. And we’re here to help!

Check out Part Two for more information!

Effective August 1^st, 2023, Minnesota becomes the 23^rd state to legalize recreational marijuana. Minnesota already offered a medical marijuana program for patients with qualifying conditions-and as of March 2022, Minnesota permitted consumption by liquid, pills, and smoking dried, raw hemp-derived cannabis.

With the new law, an Office of Cannabis Management was created to oversee the program. And while the law goes into effect in August 2023, it is expected to take about 18 months for the first dispensaries to open.

So what is permitted under the new law?

Adults 21 and older may:

• Use, possess, or transport cannabis paraphernalia
• Possess or transport two ounces or less of adult-use cannabis flower in a public place
• Possess two pounds or less of adult-use cannabis flower in individual’s private residence
• Possess or transport eight grams or less of adult-use cannabis concentrate
• Possess or transport edible cannabis products or lower-potency hemp edibles infused with a combined total of 800 mg or less of tetrahydrocannabinol

Marijuana may be used:

• In a private residence, including the yard and area immediately surrounding the house
• On private property that is not generally accessible by the public, unless explicitly banned
• On the premises of an establishment licensed to permit on-site consumption

Notice anything missing? The workplace! How should employers react to this new law?

First, it’s important to note what the Lawful Consumable Products Statute will say after August 1, 2023:

“If an employee uses cannabis outside of work hours and off the work premises, then an employer may not lawfully discipline an employee for that behavior. However, employers can still prohibit the use of marijuana if the use of it would violate federal or state law or cause the employer to lose money or a licensing benefit under federal law.”

Adjusting your drug testing policy is good place to start.

Cannabis testing is different from drug and alcohol testing. After the effective date of this law, employers may test under compliant policy for the following reasons:

• Reasonable suspicion
• Random testing for certain employees
• Treatment program testing

What about testing job applicants?

Nope, sorry. The new law prohibits testing job applicants for cannabis as a condition of employment. Going forward, an employer may not refuse to hire a job applicant solely because the applicant’s test results indicate the presence of cannabis. However, for certain positions, cannabis is still considered a drug and employers may test applicants for cannabis.

The positions are:

• Safety-sensitive positions (as defined by statute**)
• Peace officers
• Firefighters
• A position requiring face-to-face care, education, training, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or healthcare patients
• A position requiring a commercial drier’s license or require the employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of the applicant or an employee
• Any position funded by a federal grant
• Or any other position for which state or federal law requires testing of a job applicant or an employee for cannabis.

It’s also important to note that under new regulations, employers may no longer require routine physical examination cannabis testing for most positions, nor can they require cannabis testing on an arbitrary or capricious basis.

Can employees be subject to discipline?

Yes, if the employee uses, possess, sells, transfers, or is impaired while working, while on company property, or operating company equipment and if any of the following requirements are met:

• As a result of consuming a cannabis or hemp-derived product, the employee does not possess the clearness of intellect and control of self that the employee otherwise would have; or
• If testing verifies the presence of cannabis following a confirmatory retest; or
• If the employee’s written work rules for cannabis apply to such conduct and the policy meets the minimum requirements of the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), Minn. Stat. § 181.952.
• If the employer is required to do so under state or federal law or if a failure to do so would cause an employer to lose a monetary or licensing benefit under federal law.

Other DATWA requirements:

If it’s the employee’s first positive drug test, MN employers must offer the employee the chance to go to rehab instead of terminating them.

DATWA’s Written Policy Requirements:

The consequences of not paying attention to these regulations can be costly for employers. Job applicants or employees can bring a civil action based on an employer’s or laboratory’s violation of the DATWA.

Available remedies include:

• Damages
• Attorney’s fees, if the violation is knowing or reckless
• Injunctions prohibiting the employer or laboratory from violating the DATWA
• Any other equitable relief the court deems appropriate, including:
  • Hiring
  • Reinstatement
  • Back pay

If an employer violates the Lawful Consumable Products Law, a job applicant or employee can bring a civil action, and fi the court finds a violation, can award damages (limited to wages and benefits lost due to the violation) and/or court costs and attorney fees.

So what now?

Employers with Minnesota employees should revise their drug and alcohol testing policies and consider whether testing for cannabis makes sense for their company in light of these changes. Reminder that the medical marijuana program will still exist. There will be additional medical cannabis licenses allowed under the new law. It is still unlawful for an employer to discriminate against a person who is enrolled in the medical cannabis program unless the employer would lose a monetary or licensing-related benefit under federal law or regulations. Patients enrolled on the medical cannabis registry may still present their medical cannabis registration verification to their employer in the event the patient tests positive on an employer’s drug or cannabis test. However, employers are not required to permit an employee enrolled in the medical cannabis program to be under the influence at work.​

​

**“Safety-sensitive position” means a job, including any supervisory or management position, in which an impairment caused by drugs, alcohol, or cannabis usage would threaten the health or safety of any person.

We recommend revising your current drug policy with the consultation of counsel-reach out today to consult with a member of our team-before the new law goes into effect.

The Employment Law attorneys at Wagner, Falconer and Judd stay up to date on these regulations so you don’t have to. As always, laws are continuously changing and evolving-the information provided in this blog is up to date as of the published date.

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!