On September 28, 2016, the Minnesota Supreme Court confirmed that the Minnesota Payment of Wages Act does not allow an employer to offset liabilities owed by the employee to the employer when determining whether an employee “recovers” a greater sum of wages than the employer tendered in good faith where there is a dispute concerning wages owed. Toyota-Lift of Minnesota, Inc. v. American Warehouse Systems, LLC (Minn. 2016). Remember from my earlier post, the Minnesota Payment of Wages Act provides that when an employee’s employment terminates, the employer must promptly pay all wages due (or suffer double damages plus attorneys fees). If there is a dispute, the employer can make a “legal tender of the amount which the employer in good faith claims to be due” and then is not liable for any sum greater than the amount tendered, unless the employer recovers more than that amount in a lawsuit. Generally clients are advised to make a “payment” of the alleged wages due, then attempt to recover the over payment. This opinion appears to be a game changer.

Most notable (to me, anyway), is what the Court didn’t hold…but what it put in dicta (meaning, it’s two cents, but not binding law) in a footnote. The Court notes that the Act does not define “legal tender”, and goes on to state that it is not, “entirely clear that a ‘tender’ under subdivision 3 is the same thing as a ‘payment'”. Noting that “tender” is defined by Blacks Law Dictionary and others as an “offer”, “these factors suggest that a settlement offer might be considered a ‘tender,’ regardless of whether the settlement offer is accepted.” But, unfortunately, the employer failed to raise that argument in its brief, and so the Court did not formally make a ruling on that issue. Adding further insult to injury, the Court also noted that the employer argued at oral argument that the Act should be interpreted for extinguishing liability for penalties whenever an employer makes good faith tender of the amount allegedly due (regardless of whether the employee recovers more than the tender), but as they failed to brief that issue, it too, would not be considered.

This opinion could have huge impacts on the treatment of the payment of wages upon termination. Historically, when an employer terminates an employee, and a dispute arises as to unpaid wages, the employer is advised to pay the disputed amount within 24 hours, so long as it is in the realm of reason, then attempt to settle the dispute with the employee (knowing that rarely you are actually going to recover monies paid). This most often occurs with salespersons and their commissions.

This case, however, hints that it would be acceptable for an employer to tender an offer to pay that amount as part of a settlement agreement, and still be able to avoid the liability under the Act for not paying wages timely. Again, someone is going to have to challenge this, unfortunately, and properly bring the issue before the court to rule on. In other words, pay what is undisputed upon demand, and tender (an offer) to pay the remainder as part of a settlement. So long as the employee is not awarded more than the tender (settlement offer), the employer is not liable for anything else (such as double damages or the employee’s attorneys’ fees – the real penalty).