St. Paul Joins $15 Minimum Wage Movemen

After significant debate and discussion over a period of several months, the St. Paul City Council approved a new wage ordinance this week that will require a $15 minimum wage within the city of St. Paul for covered nonexempt workers. The City Council voted unanimously in favor of the wage change and St. Paul Mayor Melvin Carter signed it into law soon after.  

Covered Employers and Phase-In Requirements

Similar to the Minneapolis $15 minimum wage ordinance, the St. Paul ordinance will phase in the $15 minimum wage increase over time, and the wage requirement will apply to all time worked within the city by a covered employee. All covered employers will have new minimum wage requirements by 2020, but the rate of phased-in increases will depend on the employer’s size. The ordinance distinguishes between “macro,” “large,” “small,” and “micro” businesses based on their number of employees, with different applicable phase-in requirements. Under the ordinance, an employer’s business size is based on the average number of employees it had per week during the previous calendar year. For brand new businesses, the size will be based on the average number of employees per week during the first 90 days after the first person begins working for the business. In addition, in determining an employer’s size, all employees on a full-time, part-time, joint, or temporary basis must be counted whether or not located in St. Paul.

Wage and Hour Issues During Frightful Weather

I have been watching the weather carefully, because my family will be doing some tree trimming this weekend. As you can imagine, I was a bit concerned when I heard about potential snowfall. The threat of snow reminded me that inclement weather often results in questions from employers about how to address the related wage and hour issues that arise when they shut down their business for weather or employees are unable to get to work. In preparation for the upcoming winter snowstorm season, I offer the following guidelines:

• What to Do When You Shut Down Your Business Due to Inclement Weather

Federal Agencies Update FMLA and FCRA Forms

If you are an FMLA-covered employer or you conduct employment-related background checks, you’ll want to take note that federal agencies have issued updated forms that may need to be incorporated into your practices. In September 2018, the U.S. Department of Labor (DOL) issued new model Family and Medical Leave Act (FMLA) certification forms and, that same month, the federal Consumer Finance Protection Bureau (CFPB) updated its “Summary of Rights” form for use in conducting background checks falling under the federal Fair Credit Reporting Act (FCRA).

What’s the Latest on Joint Employer Liability? The NLRB Issues a Proposed Rule That Would Return to a Narrower Standard

Joint employer liability under the National Labor Relations Act (NLRA) has been a hot topic in recent years, because the NLRA standard has been in flux and joint employer status can be a significant issue for employers. For example, under the NLRA, a joint employer may be required to bargain with a union representing jointly employed workers. In addition, a joint employer can be subject to joint and several liability for an unfair labor practice by the other joint employer and can face labor picketing that would otherwise be unlawful.

A Refresher on Employee Voting Rights

With the midterm elections less than a month away, it is a good time for employers to refresh on the laws related to employee voting leave. In these contentious political times, employers may see an uptick in employee voting absences on Election Day and preparing in advance can minimize business disruptions.

Many states have laws that entitle employees to take reasonable time off on election days to vote. For example, employees in Minnesota have a right to paid time off to vote. On election day, every Minnesota employee that is eligible to vote may be “absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work.” Minnesota employers may not penalize the employee for taking the voting time off and may not deduct from the employee’s salary or wages for the absence. Further, an employer may not directly or indirectly “refuse, abridge, or interfere,” with the employee’s right to time off to vote or any other election right. To do so is a misdemeanor.

Pending California Amendment Would Make it Easier for “Sexual Harassment” Claims in California to Advance

In the midst of the #MeToo movement, the wave of proposed and actual changes to state sexual harassment laws is continuing. Earlier this year, we posted on a proposed change to Minnesota’s sexual harassment law that did not pass, but, as proposed, was intended to lower the legal standard for proving actionable “sexual harassment” in Minnesota. Now, California is pursuing a similar goal. Late last month, the California (CA) legislature passed a bill, SB 1300, that could have a significant impact on the ways in which employers need to seek to prevent and to respond to potential sexual harassment and discrimination in CA workplaces. Assuming that Governor Jerry Brown signs the bill by September 30, 2018, SB 1300 will amend California’s harassment and discrimination laws in several ways.

First, SB 1300 would add a new section to the state’s discrimination and harassment law that expressly articulates the CA legislature’s intent on how the law should be applied. A couple of the legislature’s declarations are worth noting:

U.S. DOL Issues Six New Opinion Letters

The U.S. Department of Labor (DOL) has been busy. It recently issued six new opinion letters on various compliance issues. As described below, four of the letters involve the federal Fair Labor Standards Act (FLSA) and two of the letters involve the federal Family and Medical Leave Act (FMLA). While DOL opinion letters are issued in response to a particular employer’s submission of a question to the DOL, employers that rely on a DOL opinion letter in setting their practices have a legal “safe harbor” defense if faced with, as applicable, a FLSA or FMLA legal challenge. That being said, courts are not required to follow DOL guidance, and employers should be sure to be mindful of potential state or local law variances.

FLSA Opinion Letters

• FLSA Opinion Letter 2018-20 addresses whether time spent by a nonexempt employee voluntarily engaging in employer-sponsored wellness activities, biometric screenings, and benefit fairs constitutes compensable time under the FLSA. The short answer is that, if handled properly, an employer can set such time up to be nonworking time that is unpaid. To do so, the employer must ensure that: (i) employee participation is voluntary; (ii) the employee does not perform job-related activities while participating; and (iii) the wellness and benefits activities primarily benefit the employee. Activities that are aimed at educating an employee to make informed decisions about their personal wellness, benefits, or finance choices are likely to be viewed as primarily benefiting the employee.