Apple picking
Minnesota employers employing 30 or more migrant workers – be aware you have unique considerations for the employment of such workers pursuant to Minnesota’s Migrant Labor law, Minn. Stat. 181.85 – .89. So, what’s up? As I’ll detail below, this employment is not really “at will”, like most employment relationships in Minnesota. There must

Salary plus overtimeFollowing the big news about the overtime regulations overhaul, I’ve been fielding several calls from concerned HR professionals regarding the actual conversion of certain employees (paid less than $47,476) from exempt to non-exempt by December 1, 2016.  As I predicted, many employees are already voicing concerns about not being paid a salary (and thus, not

Aerial_photo_of_downtown_Minneapolis

On May 27, 2016, the Minneapolis City Council unanimously approved the Minneapolis Sick and Safe Time Ordinance, Title 2, Chapter 40 – Workplace Regulations.  The final Ordinance mandates unpaid sick and safe leave for employers with 1 to 5 employees, and paid sick and safe leave for employers with 6 or more employees. Notably, the final amendment includes not only the use for sick and safe care, but also school snow days.

Below is a quick overview of what the ordinance requires, who it applies to, what burdens employers have, and the implications of a violation. However, time will only tell how this plays out in reality.

What Does the Minneapolis Sick and Safe Time Ordinance Require?

The Ordinance, effective July 1, 2017, requires employers to provide employees with paid/unpaid sick and safe time.  New employers (with 1 or more employees), will have 12 months to provide unpaid time off. After 12 months, new employers will be subject to the Ordinance in its totality (this 12 month delay will only be allowed for 5 years from the enactment).

Employees working in Minneapolis will accrue sick and safe time unpaid leave at the rate of 1 hour for every 30 worked, up to an annual cap of 48 hours (either calendar or fiscal year). Exempt (salaried) employees are deemed to work 40 hours each week unless their normal workweek is less than 40 hours.  Employees must be allowed to use sick and safe time after 90 calendar days of employment.  Employers must permit an employee to carry over at least 80 hours of accrued but unused sick and safe time into the following year.

Additionally, sick and safe leave time need not be paid this time out at termination. Employees must be able to use the leave in the same increment of time consistent with current payroll practices and existing employer policies (but no more than 4 hours).  They must be compensated at the same hourly rate with the same benefits (except they are not entitled to lost tips or commissions and compensation is only required for the hours the employee was scheduled to work).

Who Is An “Employer” and “Employee” Under the Ordinance?

Does this Ordinance affect your business based in Eden Prairie or Alexandria?  It depends on whether you are a covered employer, defined below.  The Ordinance defines several terms with specificity, but here it is in a nutshell:
Continue Reading Minneapolis Sick and Safe Time Ordinance Approved – Snow Days Covered

There are three demands former Minnesota-based employees can make post-termination that should send all kinds of red flags to an employer.  They are often made via email and seem like innocent enough requests. Not so!  Fun fact: terminated employees are entitled to demand three things post-termination: (1) a copy of their personnel file; (2) a

I'm a winnerIn an earlier post regarding payroll deductions, I promised to write about the unique aspects of deductions from a sales employee’s commissions. This topic is always ripe for discussion.  Why? Well, good salespersons will make great commissions! They are winners. They don’t like to lose sales – or money.  They are usually very aware of what they have sold and the related commission. Accordingly, when they see a deduction on a commission, or a commission less than they expected, naturally their radar goes on high alert.  I can’t blame them, this is their bread and butter after all – and this is what drives them; these are folks generally highly motivated by monetary compensation – which is the whole point.  They bring in revenue for the business and want to be rewarded accordingly.

There are actually two different aspects to salespersons commissions – with an extremely important distinction between the two. First, when can an employer deduct from commissions owed, due to errors or omissions? Second, when can an employer reduce a salesperson’s commission not due to the salesperson’s errors or omissions?  Hopefully I can help clarify. However, for purposes of this post, I should specify that this is all about employed salespersons – not independent contractors.  Commission salespersons who are independent contractors have their own prompt payment statute and that would throw us off track here.

Making Deductions From Commissions Due to Errors or Omissions

As I mentioned before, Minnesota law (Minn. Stat. 181.79) treats sales commissions differently when it comes to allowing wage deductions. Indeed, the wage deduction requirements for faulty workmanship, loss, theft, or damages do not apply when an employer has rules related to commissioned salespeople, when the rules are used “for purposes of discipline, by fine or otherwise, in cases where errors or omissions in performing their duties exist”.  
Continue Reading Making Deductions and Adjustments to Commissions

24 HourWhile Jack Bauer may be by the wayside, Fox Network’s 24 is not going away any faster than an employer’s requirement to pay terminated Minnesota employees within 24 hours.  An issue that I frequently get calls about (usually somewhat frantic) is a terminated employee’s demand for payment within 24 hours. Unfortunately, too many employers without

Mother and childWell, I don’t want to say I called it but…on April 8, 2016, I wrote a post about Minneapolis’ proposed paid sick leave and managing paid sick leave laws in multiple states, suggesting that this issue is only going to spread. Indeed, it has.  Minnesota is proposing a paid sick leave fund comparable to the State of California – but even going beyond (one upping CA?! Impressive feat if passed). Though I didn’t know it then, I now know that on March 10, 2016, State Senators Sieben, Pappas, Franzen, Bakk and Hawj introduced SF2558, “a bill for an act relating to paid family medical leave benefits; establishing a family and medical leave benefit insurance program; imposing a wage tax; authorizing rulemaking; creating an account; appropriating money” and amending the state statutes accordingly.  The proposed law has been amended and is currently before the Finance committee in its 3rd engrossment. English = it is still pending and here is the latest version.  It proposes to be effective January 1, 2020, though the payroll tax will take effect 2018 (the State needs 2 years of taxes to have money to pay employees this proposed benefit).

Bill Proposes New Payroll Tax (Effective August 1, 2016) on Employers and Employees.

If passed as drafted, a new payroll tax will be imposed on employers with 21 or more employees (working in Minnesota during the past year) starting August 1, 2016.  Employees of covered employers would also suffer the new payroll tax.  The initial tax rates are 0% for 2017, 0.05% for 2018 and 0.1% for 2019.  The rates in 2020 have not been introduced yet.  The proposed bill seeks an appropriation in 2017 from the general fund to get the program started.

What happens to the money from the tax?  It will go into a new state-run trust fund to be used to replace between 55% – 80% of an employees wages for up to 12 weeks a year for leave to care for family member, pregnancy-related condition and/or to bond with a newborn child (whether biological or adoptive).  In addition, if the IRS determines that the benefits are subject to federal income tax, that tax would be withheld.

How Would This Work?
The Commissioner of Minnesota’s Department of Employment and Economic Development (“DEED”), currently Katie Clark Sieben, would be tasked with administrating the new benefit insurance program. Accordingly, DEED must create three application forms both for online applications and in paper: (1) family care benefits; (2) bonding benefits; or (3) pregnancy benefits.  Once the employee applies, the Commissioner would have 2 weeks to approve or deny the application.  If the application is determined “valid” and thus approved, the employee would then be notified of the week when benefits commence, the weekly benefit amount payable, and maximum duration.  The employer would also be notified and provided rights to participate in an hearing and appeal process.  Denied applications (deemed “invalid”) may be appealed, similar to unemployment, via a hearing before a newly created “benefit judge” (as well as challenges by employers).

What Employees Are Eligible?

An employee would be eligible for leave if the employee performed services for the employer for at least 6 months before the request (note this is less than the 12 months required by FMLA) and for at least 20 hours a week (well, it’s a little more complicated formula, but basically – half-time employees).

What Could Leave Be Taken For?


Continue Reading Minnesota Considering Payroll Tax Starting in 2018 for 2020 Statewide Family and Medical Benefit Insurance Program

Yesterday was “Equal Pay Day” – this is the day that the average pay for women catches up to the average pay for men from the preceding year alone.  I had no idea until I received an EEOC email update proclaiming this to be true.   For what it’s worth, apparently today is National Make Lunch Count Day, National Scrabble Day, National Peach Cobbler Day, National Thomas Jefferson Day and, my favorite, National Bookmobile Day.  All worthy causes, to be certain.  On to the EEOC’s latest administrative burden on employers.

EEOC Seeks Revisions to EEO-1 Survey.

On February 1, 2016, the EEOC proposed revisions to add wage and hour information to employers’ yearly EEO-1 report.  This is old news, of course, but as the comment period closed on April 1, 2016, and the EEOC sent me the email of what’s on its radar, I thought it might not be bad to revisit what is likely coming down the pipeline.  The EEO-1 report is required by the EEOC, pursuant to its authority in Title VII of the Civil Rights Act of 1964 (Title VII), and sets forth information aimed at detecting discriminatory practices.  The proposed revision is the recommendation of a 2010 Equal Pay Task Force between the EEOC, DOL and the President’s National Equal Pay Task Force.

Who Cares?

The EEO-1 survey is used by the EEOC and the OFCCP (Office of Federal Contract Compliance Programs) to analyze and enforce non-discriminatory employment (such as a contractor who hires no minorities).  The EE0-1 survey must be filled out by all employers subject to Title VII with 100 or more employees (this includes corporate enterprises and/or shared ownership) and federal contractors / first-tier subcontractors subject to Executive Order 11246 (government contract over $10,000) with 50 or more employees and a prime contract or first-tier subcontract of $50,000 or more.

However, the EEOC has taken mercy – not all employers will have this additional pay and hours worked data burden (now called “Component 2” of the EEO-1).   
Continue Reading Happy (Belated) Equal Pay Day! EEOC’s Proposed Amendment to the EEO-1 – Requiring Pay Data

USA MapMinneapolis is one of many cities giving increased attention to mandating a paid sick leave policy.  On March 16, 2016, the Minneapolis Workplace Regulations Partnership Group (WPG) (created by Mayor Betsy Hodges and the Minneapolis City Council) submitted its Findings & Recommendations to the Minneapolis City Council.  In a nutshell, the WPG recommended the City pass a sick time policy covering all employers “working in the City of Minneapolis regardless of employer location”.

The Proposed Minneapolis Paid Sick Leave Policy

The proposed Minneapolis policy (which I won’t get into great detail in this post), would require covered employers to provide employees with paid sick time for themselves or members of extended families and household for mental and physical health.  The proposal recommends that employees accrue sick time at the rate of 1 hour for every 30 worked, up to an annual cap of 48 hours.  Employees would be allowed to carryover up to 80 hours of accrued, unused sick time – but need not be paid this time out at termination.  WPG member Steve Cramer of the Minneapolis Downtown Council (business association representative) submitted a Minority Statement proposing an alternative means to address the Council’s sick leave policy goal and noting several issues with the proposed policy (such as employers who already have a successful flexible PTO policy may not mirror the City’s ordinance, but otherwise achieves the same objectives of paid time off for sickness).  It is those concerns that employers are raising – how can we possibly keep up with the nuances of yet another sick leave ordinance when we already have a comprehensive paid time off policy?

Various Paid Sick Leave Laws and Ordinances Already Exist Nationwide


Continue Reading Managing Paid Sick Leave Laws in Multiple States – Uff Da!