Minnesota’s New Wage Theft Law: Are You Prepared?

Governor Tim Walz recently signed into law expansive new wage theft protections for employees that will go into effect on July 1. The new law significantly changes a number of employer wage-related requirements. It also includes increased civil enforcement penalties, as well as new criminal penalties for intentional wage theft. The major requirements of the law are summarized below:

Earning Statements

The law requires that employers include additional information in the earning statements provided to employees at the end of each pay period. Employers must now include 1) the rate or rates of pay. including the basis of that rate (hourly, salary, etc.) 2) allowances claimed for permitted meals and lodging; 3) the physical address of the employer’s main office and any different mailing address; and 4) the employer’s telephone number.

Employee Wage Notice Upon Hire

The law requires a written notice be provided to each employee at the start of employment, which must include the following:

Employer Must Timely Assert a Title VII Failure to Exhaust Administrative Remedies Defense or Waives the Defense

On Monday, the U.S. Supreme Court unanimously held that Title VII’s requirement that claimants exhaust administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) before suing is not jurisdictional. The decision, issued in Fort Bend County v. Davis, means that an employer that fails to timely assert a “failure to exhaust” affirmative defense to a lawsuit waives the ability to later seek dismissal of the suit on this ground. As a result of the Court’s ruling, employers need to be vigilant in timely asserting any failure to exhaust defense at the outset of litigation to preserve the defense.

Much Ado About Little — Numerous Employment-Related Bills Stall Out in Minnesota Legislature

Although the recently completed 2019 regular session of the Minnesota Legislature included a significant number of bills on various employment-related topics, in the end, the Legislature passed very few such bills. The future fates of those bills are quite unclear at this time. As of the close of the regular legislative session, numerous employment-related bills were still active, in either one or both legislative bodies, touching on a variety of significant topics, including:

• Paid leave (generally).
• Medical leave.
• Family leave.
• Work shift scheduling requirements.
• Wage theft protection.
• Sexual harassment standard.
• Statewide preemption on wage and benefits laws.

Independent Contractor vs. Employee — The Tug of War Continues

Two recent developments have occurred in the seemingly constant struggle regarding the classification of independent contractors versus employees. The developments are examples of two very divergent paths that are being taken by various governmental entities and administrations. Some are tightening the requirements for independent contractor status. Others, however, are creating a more business-friendly loosened standard.

On Monday, April 29, 2019, the Wage and Hour Division of the United States Department of Labor (DOL) issued an opinion letter (“Opinion Letter”) regarding the classification of independent contractors under the Fair Labor Standards Act (FLSA). This first opinion letter on the topic under the Trump administration is in stark contrast with the DOL guidance issued during the Obama administration (and later withdrawn by the Trump administration in 2017). The Obama era guidance took the position that most workers should be classified as employees under the FLSA, while the new Opinion Letter is more employer friendly.

EEO-1 Pay Data Reporting Deadline Set

Pursuant to an April 25 court order, employers with annual EEO-1 reporting requirements will now have until September 30, 2019 to provide the new Component 2 pay data.

Background

As we discussed in our recent update, the Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employer’s workforce by race, gender, ethnicity, and job category. In February 2016, the EEOC published a federal notice announcing its intention to revise the EEO-1 form to collect pay demographics through a Component 2 requirement. The Office of Management and Budget (OMB) approved the pay data collection in September 2016, and data collection was set to begin in 2017 and be reported to the EEOC in March 2018.

NYC Prohibits Pre-Employment Marijuana Testing—Is Minnesota Next?

On April 9, 2019, the New York City Council passed a city ordinance that prohibits employers from requiring applicants to submit to drug tests for marijuana. The city’s Mayor is expected to sign the ordinance in the next few weeks and it would take effect one year after it is signed into law. Importantly, the ordinance only applies to job applicants—it does not apply to current employees. This is the first law within the U.S. to prohibit employers from drug testing for marijuana.

EEO-1 Pay Data Reporting Update

Employers with annual EEO-1 reporting requirements can soon expect to have new pay data reporting requirements for 2018. The reporting deadline could be as early as May 31, 2019, but the deadline is more likely to be set for later this year.

Background

The Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employer’s workforce by race, gender, ethnicity, and job category. In February 2016, the EEOC published a federal notice announcing its intention to revise the EEO-1 form to collect pay demographics through a Component 2 requirement. The Office of Management and Budget (OMB) approved the pay data collection in September 2016, with data collection to begin in 2017 and be reported to the EEOC in March 2018.