In a bold move, the Minnesota Legislature passed on Friday, May 9, 2014, the Women’s Economic Security Act (WESA), a controversial, comprehensive bill designed to further promote opportunities for women in the workplace. Governor Dayton signed the bill on Mother’s Day. WESA is comprised of multiple pieces of legislation and is touted as the first of its kind nationwide.
WESA heralds significant changes for employers, affecting in many instances both male and female employees. A number of the major legislative developments are outlined below:
Workforce Development Council/Jobs Grant Program
The Governor will appoint an individual to the Workforce Development Counsel with expertise in assisting women in obtaining employment in high-wage, high-demand, nontraditional occupations. The Commissioner of Employment and Economic Development will establish the Women and High-Wage, High-Demand, Nontraditional Jobs Grant Program. The Commissioner will make grants to eligible organizations for programs that encourage and assist women to enter for instance occupations in the skilled trades, science, technology, engineering and math.
State-Administered Retirement Savings Plan
The Commissioner of Management and Budget must report to the legislature by January 15, 2015, on the potential for a state-administered retirement savings plan for employees without access to either an automatic enrollment payroll deduction IRA offered by their employer or a multiemployer retirement plan or other qualifying retirement plan or arrangement.
New Protections Against “Familial Status” Discrimination
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WESA amends the Minnesota Human Rights Act effective as of May 12, 2014, to prohibit employers, labor unions and employment agencies from discriminating against applicants and employees based on “familial status,” thus adding to the long list of protected classes in Minnesota.
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The “familial status” protection applies to a person who is pregnant or who is in the process of securing legal custody of a minor. “Familial status” further is defined as “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent, parents or guardian” with written permission.
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The Minnesota Human Rights Act applies to employers with one or more employees and protects employees and commission sales persons who reside or work in Minnesota. The addition of “familial status” as a protected class opens the door for a broad range of potential claims by applicants and employees.
Expansion of Minnesota Parenting Leave Act
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Prior to the WESA amendments, Minnesota employers with at least 21 employees were required to provide up to six weeks of unpaid leave to an employee upon the birth or adoption of a child. Employees who had worked for the employer for at least 12 consecutive months and who worked on average at least half time during such period were eligible.
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WESA extends the available unpaid leave from six to 12 weeks, and allows for leave in the additional circumstances where a female employee needs leave for prenatal care, or for an incapacity due to pregnancy, childbirth or related health conditions. In addition, eligible employees need only have been employed as of the start of the leave for 12 months, not for 12 consecutive months.
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Employers may also under the WESA amendments require employees to use other parental, disability, personal medical, sick leave or accrued vacation during the 12 week period.
Expansion of Minnesota Sick Leave for Care of Relatives
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Minnesota law requires employers to allow employees to use accrued personal sick leave benefits for absences due to an illness or injury of the employee’s child (including a minor or adult child, stepchild or foster child), spouse, sibling, parent, stepparent or grandparent on the same terms the employee is able to use sick leave benefits for the employee’s own illness or injury.
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WESA amends the sick leave statute to allow employees to use sick leave in addition for absence due to the illness or injury of a mother-in-law, father-in-law, or grandchild (including a step-grandchild and a biological, adopted or foster grandchild).
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An employee may also use sick leave for “safety leave” whether or not the company’s sick leave policy allows for use of sick leave for this purpose. Safety leave is broadly defined to cover employee leave for the purpose of providing or obtaining assistance because of sexual assault, domestic abuse or stalking of the employee or of any relatives of the employee as noted above.
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Employers may not retaliate against an employee for requesting or obtaining a leave under the law.
Reasonable Accommodation of Pregnancy
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Effective as of May 12, 2014, WESA requires employers that have 21 or more employees to provide reasonable accommodation to an employee for health conditions related to pregnancy or childbirth unless the employer demonstrates that the accommodation would impose an undue hardship on the operations of the employer’s business.
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The accommodation is required upon request of the employee with the advice of her licensed health care provider or certified doula (labor coach).
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However, an employer may not claim undue hardship, and the employee may not be required to obtain the advice of her licensed health care provider or certified doula for the following accommodations:
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More frequent restroom, food, and water breaks,
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Seating, and
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Limits on lifting over 20 pounds
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The employer and employee are required to engage in an interactive process with respect to the employee’s request for a reasonable accommodation.
Expansion of Nursing Mothers Statute
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WESA expands the Minnesota Nursing Mothers statute to require that an employer provide a nursing mother with a room or other location to express milk in privacy that (1) is in close proximity to the work area, other than a bathroom or toilet stall, (2) is shielded from view and free from intrusion from coworkers and the public; and that (3) includes access to an electrical outlet.
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The statute has been further amended to prohibit retaliation against an employee for asserting rights or remedies under the statute.
Protection of Employees’ Right to Disclose Wages
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Under WESA, Minnesota employers are now prohibited by statute from restricting an employee’s ability to disclose his or her wages, requiring an employee to sign a waiver or other document denying the employee the right to disclose his or her wages, or retaliating against an employee for disclosing his or her wages or discussing another employee’s wages that were disclosed voluntarily.
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The new law does not require an employer or an employee to disclose wages, nor does it permit an employee to disclose company proprietary or trade secret information, or information protected under legal privilege or applicable law.
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An employer may not retaliate against an employee for asserting rights or remedies under the new law.
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If the employer provides an employee handbook to employees, the employer must include in the handbook a notice of rights and remedies under the new law.
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Under federal law, specifically the National Labor Relations Act, an employee’s right to discuss wages has been protected for quite some time as protected, concerted activity.
Unemployment Compensation
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The Minnesota Unemployment Insurance Law, at section 268.095, subd. 1, provides an extensive list of circumstances where an employee may resign from employment and still collect unemployment compensation benefits. One such circumstance is where the employee’s resignation is necessitated by domestic abuse of the employee or of an immediate family member. WESA expands this list to include circumstances where an employee’s resignation is necessitated by the sexual assault or stalking either of the employee or of an immediate family member. Domestic abuse carries the definitions set forth in the Minnesota Domestic Abuse Act, and sexual assault and stalking are as defined in Minnesota’s criminal code.
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Under the Unemployment Insurance Law, employees who are terminated due to misconduct as defined in Section 268.095, subd. 6, are ineligible for benefits. The law contains a list of employee conduct that will not constitute employment misconduct. WESA adds to the list any conduct by the employee that was a consequence of the employee or an immediate family member being a victim of domestic abuse, sexual assault or stalking.
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These amendments are effective as of October 5, 2014.
Pay Equity Certification for State Contractors
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Companies that have contracts with the state, certain state agencies and departments, or the Metropolitan Council in excess of $500,000 and have more than 40 full-time employees will, in addition to their current State affirmative action requirements, need to obtain an equal pay certificate. The certification is valid for four years.
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In order to obtain a certificate, the employer must submit to the commissioner a statement signed by the Chief Executive Officer or Chair of the Board of the company confirming that:
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The business is in compliance with Title VII, the federal Equal Pay Act, the Minnesota Human Rights Act, and the Minnesota Equal Pay for Equal Work Law;
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The average compensation for female employees is not consistently below the average compensation for male employees within each EEO-1 job category, taking into consideration such factors as length of service, requirements of the jobs, experience, skill, effort, responsibility, working conditions, and other mitigating factors;
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The business does not restrict employees of one sex to certain job classifications and the business makes retention and promotion decisions without regard to sex; and
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Wage and benefit disparities are corrected when identified.
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The statement must also indicate how often wages and benefits are evaluated to ensure compliance with the above laws and requirements, and what system the company uses to determine wage and benefit levels (i.e., a market pricing approach, state prevailing wage, collective bargaining agreement wage scales, performance pay system, etc.).
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Certain state contractors are exempt from the new requirements, and the provisions will not apply if the commissioner determines that compliance would cause undue hardship to the company.
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These amendments are effective August 1, 2014.
The WESA provisions are extensive and their impact is likely to be extensively discussed, debated and clarified in the months to come. We will in subsequent alert articles provide additional guidance. Please contact any member of our Employment & Labor Group regarding WESA and its impact on your business.
