Minnesota Employment Law Report - Observations on labor and employment law from FLFV

On May 13, 2013, Governor Dayton signed the “Ban the Box” bill into law.  Effective January 1, 2014, private employers must “Ban the Box” inquiring about criminal history on a job application. Specifically, private employers now join their public employer counterparts and are no longer allowed to “inquire into or consider or require disclosure of” an applicant’s criminal record or criminal history until after the applicant has been selected for an interview. If there is not an interview, the prohibition applies before a conditional offer of employment is made to the applicant. S.F. No. 523 (to be codified at Minn. Stat. § 364.021).

Importantly, however, employers who have a statutory duty to conduct a criminal history background check or consider such criminal history during the hiring process (i.e. applications for working at a school or as a school bus driver) do not have to remove criminal history questions from the application. In addition, employers are not prohibited from notifying applicants that “law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.”

The Commissioner of Human Rights is tasked with investigating violations of the statute. If a violation occurs prior to January 1, 2015, an employer is given a written warning to remedy the violation. If the violation is not remedied, or subsequent violations occur, the Commissioner may impose up to a $500 fine per violation, not to exceed $500 in a calendar month. For violations after December 31, 2014, the penalties are as follows:

• Up to $100 per violation for employers with ten or fewer employees, not to exceed $100 in a calendar month;


• Up to $500 per violation for employers with 11-20 employees, not to exceed $500 in a calendar month; and


• Up to $500 per violation for employers with more than 20 employees, not to exceed $2,000 in a calendar month.

The remedies stated above are exclusive and an employer is not otherwise liable for complying with or failing to comply with the statute.

Bottom Line

The fix is straight-forward:

• Employers should “Ban the Box” and remove any questions on the job application related to criminal convictions unless the employer has a statutory duty to consider such information.


• The statute does not prohibit employers from considering an applicant’s criminal history when deciding whether to offer an applicant a job; it only determines the timing of when such information may be considered.


• Employers should wait until the interview (or after the conditional offer is made if there is no interview) before inquiring into an applicant’s criminal convictions.


• Employers have the right to notify applicants that either the law or the employer’s policy will disqualify an individual with a particular criminal background.


• Employers who wish to include such notification could place it on the job application.


• At the interview stage, an employer interested in an applicant’s criminal conviction could ask the questions that used to be on the application (i.e. have you ever been convicted of a felony?).


• As intended by the statute, job applicants now get a chance to explain their side of the story.

The United States Citizenship and Immigration Services (“USCIS”) released a new Employment Eligibility Verification Form I-9 (“Form I-9”) this month. 

The Form I-9 is used to verify both the employment authorization eligibility and the identity of employees.  Although employers should begin using this new form immediately, the USCIS acknowledges that some employers may need sufficient time to update their business processes prior to transitioning to the use of this form. As a result, if necessary, employers can continue using previously valid Forms I-9 until the use of the new form becomes mandatory on May 7, 2013.  Employers who fail to utilize the new Form I-9 as of May 7, 2013, may be subject to penalties as set forth in 8 U.S.C. § 1324(a).

Provided that re-verification does not apply, employers are not required to complete a new Form I-9 for any current employees for whom proper Forms I-9 are already on-file.

The changes are aimed at minimizing errors in form completion and include:

• Expanded instructions;


• Expanded length from one to two pages; and


• New fields for e-mail addresses, phone numbers, and foreign passport information in Section 1.

The revised form includes “Rev. 03/08/13” in the lower left corner of the page and is accessible at www.uscis.gov.

Bottom Line

Employers should be aware of the new Form I-9 and begin utilizing it immediately, if possible. Failure to use this new form when it becomes mandatory on May 7, 2013, may subject employers to penalties.

More information about the new Form I-9 is available at www.uscis.gov/I-9Central.

On Tuesday, November 6, 2012, Minnesotans will head to the polls to cast their vote.  As we've reminded employers in the past, Minnesota's Election Day Law, Minn. Stat. § 204C.04, gives employees the right to time off to vote.

"Right to Be Absent from Work . . . Without Penalty or Deduction"

Pursuant to Section 204C.04, every employee who is eligible to vote has the "right to be absent from work" to vote on the day of the election, "without penalty or deduction from salary or wages because of the absence . . . ."  Under the law, employees have the right to be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work . . . .”

Employers or "other persons" may not either directly or indirectly refuse to grant the time off or otherwise interfere with an employee’s right to take the time to vote on Election Day.  Persons who violate the statute are guilty of a misdemeanor.

Employer FAQs

While the Minnesota Election Day Law provides little specifics on how exactly the leave should work, Minnesota Secretary of State Mark Ritchie provided some guidance in a recent letter to "All Minnesota Employers."

• Can I request that employees provide advanced notice and coordinate their time off with other employees who need time off to vote?

Yes. While the statute does not directly address this issue, the Secretary of State believes that "employers may request that employees provide notification as to when they will be gone and request that employees coordinate their absences so as to minimize adverse impact on the workplace."

Importantly, the Secretary of State uses the term "request" (not "require"), so it is likely not permissible for an employer to mandate that employees give it advanced notice or that employees coordinate their absences.

• Can I limit the amount of time the employee is absent from work?

Likely yes, but this issue is not directly addressed by the statute or the letter from the Secretary of State.  It would also be difficult to enforce. 

Specifically, the statute provides that the employee must be given time off for the time necessary to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work. Thus, it is safe to say that it does not provide for time off to stop at McDonald's on the way. It may be difficult, however, to determine whether an employee who seems to be taking a long time to return to work is doing anything other than simply waiting in a long line at the polling place.

It is important to note that the statute makes it clear that the employee should be given sufficient time to vote at the "employee's polling place." Therefore, employees who travel great distances to get to work must be given enough time to travel to their polling place and back.

• Can I require the employee to use accrued vacation or paid time off (PTO) to make up the difference?

No.  The statute gives employees the right to be absent from work "without penalty or deduction from salary or wages."  According to the Secretary of State, this means that "employees cannot be required to use personal leave or vacation time for the time off necessary to vote."

Bottom Line

Minnesota employers are required by law to provide employees with time off to vote on election day.  The amount of time must be sufficient to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work.  The time off must be paid, but employers can take some steps to minimize the disruption these absences may cause. 

Often times when an employee just doesn't "work out," employers agree to not contest unemployment as part of the employee's separation agreement.  In addition to a severance payment or continuation of health care benefits, the employer's agreement not to contest unemployment is an additional benefit (or "consideration") for the employee's promise not to sue.

However, the Minnesota Legislature has stepped in to put an end to that practice by making such agreements invalid.   This means that unless you have offered other consideration in addition to this promise, the separation agreement, including the employee's promise not to bring suit, may be invalid.

Specifically, beginning July 1, 2012, an employer may not agree to not contest the payment of unemployment benefits, including agreeing not to provide information to the Minnesota Department of Employment and Economic Development, in exchange for an employee agreeing to:

• Quit the employment;


• Take a leave of absence;


• Leave the employment temporarily or permanently; or


• Withdraw a grievance or appeal of a termination.

2012 Minn. Laws. Ch. 201 Art. 3, Sec. 7 (to be codified as Minn. Stat. § 268.192, subd. 1(a)). According to the new law, “[a]n agreement that violates this subdivision has no effect under this chapter.”

Bottom Line

Note that this new law states that an agreement promising to not contest benefits “has no effect under this chapter.” (Emphasis supplied). This means that the agreement not to contest benefits will be ignored in the context of the unemployment process but will not affect the rest of the agreement. However, if the promise not to contest benefits is the only thing that the employer offers in return for the release of all claims, the entire release won’t be valid because the employer will not actually have given up anything in return for that release.

For this reason, employers should make sure that they have included other benefits, such as a severance payment, payment of specified benefit premiums, or other similar items, to ensure that the employee's promise not to sue is supported by adequate consideration. Simply promising not to contest unemployment benefits is now a legally empty promise.

‘Tis the season for questions about holiday parties and the associated risk of having one.  Beyond deciding what to call the party, employers are often concerned about potential fallout from parties – in particular, “If my employee is injured at the party, is the company on the hook for work comp benefits?”  The worry can be enough squelch the festive mood.

Minn. Stat. § 176.021, subd. 9, provides that injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties and picnics, do not arise out of and in the course of employment.  The exceptions typically are: (1) When an employee is ordered or assigned by the employer to participate in the program or activity; or (2) When the employer-sponsored party is intended to serve some other business objective, i.e. promoting goodwill or marketing between the employer and its customers.  In these circumstances, the injuries sustained are generally covered by the Workers’ Compensation Act.  Sometimes it can be hard to determine what is truly “voluntary” when it comes to the company holiday party.

Case in point, in Boraas v. Strand-Saboe VFW #5247, the employer would host an annual Christmas party for employees and their guests (no customers).  An employee slipped and fell while dancing with a coworker at the party and the judge found, and the appellate court agreed, that because the attendance was not “entirely voluntary,” the employee’s injury was covered under the Act.   The evidence showed that there was a notice and sign-up sheet for the party, and that the employer questioned employees who were not signed up to obtain a reason for not attending.  Further, the employees who decided not to attend, though not disciplined, were subject to sarcasm and ridicule.  At the party, there was an attendance/sign-in sheet and the employee testified at hearing about the overall importance placed upon the employee’s attendance by the employer and her belief that she was expected by the employer to attend the function.  These facts were sufficient to make the Christmas party injury compensable under the Act.

Say you want to forego the party and just give out the holiday ham or turkey – that’s safe, right?  Not necessarily.  An employee who had been on a leave and received notification that she could come to pick up her holiday turkey, and then slipped and fell in the parking lot, was held to have a compensable injury.  The court likened it to situations where an employee is injured on the employer’s premises while picking up a paycheck.  It appears that the enticement of the “turkey bonus” was an anticipated benefit on the part of the employee and attributable to the employment relationship and the injury sustained while collecting the turkey was covered under the Act.

Bottom Line

You don’t have to be like Scrooge and ban the holidays from work, just remember that when it comes to parties, do not require and police attendance – voluntary must be voluntary.  And, if you are giving your employees the holiday goose, turkey or ham, think about sending them a gift card instead.

On April 26, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published for public comment proposed regulations enhancing veteran affirmative action obligations for federal contractors and subcontractors.  The extended public comment period ended yesterday, July 11, 2010.

The Proposed Regulations revise regulations implementing Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.  The current regulations protect covered veterans by protecting them from discrimination, and by requiring federal contractors and subcontractors to maintain an affirmative action plan.  They also require federal contractors and subcontractors to engage in general outreach efforts to increase employment of veterans, and to provide job applicants and new hires an opportunity to voluntarily identify themselves as a covered veteran.

The proposed regulations add to and create additional obligations for federal contractors and subcontractors.  The proposed regulations, among other things, drastically increase data collection and retention obligations, require contractors and subcontractors to develop yearly hiring benchmarks for protected veterans by engaging in a multi-factor analysis studying the contractor’s or subcontractor’s workforce as well as the applicable civilian labor force, mandate that contractors and subcontractors engage in at least three outreach efforts each year for protected-veteran applicants, modify the current protocol for the self-identification process, and require contractors and subcontractors to provide the state employment service their job openings as well as additional information.

The OFCCP will likely issue final regulations within the next few months.  Although it is possible that public comment will persuade the OFCCP to lessen the burden presented by the proposed regulations, drastic revisions to the proposed regulations is highly unlikely. 

Stay tuned for more information.

On Tuesday, August 10, 2010, Minnesotans will head to the polls to cast their vote in the state's primary.  Minnesota's Election Day Law, Minn. Stat. § 204C.04, which covers all "regularly scheduled" state primary or general election, including Tuesday's primary, was recently amended to give employees the "right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work."

It is important for employers to take a moment to review the new law's requirements and understand your obligations.

Expansion of the "Right to Be Absent from Work"

In 2010, the Minnesota Legislature expanded employees' opportunity to be absent from work without penalty to vote.  Legislators removed the provision that had previously allowed such absences only in the morning of Election Day.

Every employee who is eligible to vote has the right to be absent without penalty or loss of salary or wages.  Under the new law, employees have the right to be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election.”

Employers or "other persons" may not either directly or indirectly refuse or otherwise interfere with an employee’s right to take the time to vote on Election Day.  Violations of the statute are guilty of a misdemeanor.

Answers to Unanswered Questions

Other than prohibiting "penalties" or "wage and salary deductions," the Minnesota Election Day Law provides little guidance to employers.  Employers often ask very specific questions that are simply not addressed by the statute.

• Can I require an employee to provide advanced notice?

Probably.  While the statute does not directly address this issue, an employee would be hard pressed to argue that providing notice to his employer (at least at the time his or her shift starts) somehow interferes with the employee's right to be absent from work to vote and lack of notice is not a valid basis for taking disciplinary action.

• Can I limit the amount of time the employee is absent from work?

Yes, although this will be difficult to enforce.  The statute provides that the employee must be given time off for the time necessary to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work. It does not provide for time off to stop at McDonalds on the way. It may be difficult, however, to determine whether an employee who seems to be taking a long time to return to work is doing anything other than simply waiting in a long line at the polling place.

It is important to note that the statute makes it clear that the employee should be given sufficient time to vote at the "employee's polling place."  Therefore, employees who travel great distances to get to work must be given enough time to travel to their polling place and back. 

• Can I require the employee to use accrued vacation or paid time off (PTO) to make up the difference?

Probably not.  While the statute does not address this question, deducting an employee's accrued leave or PTO may be viewed as a prohibited deduction or penalty.

• Can I coordinate an employee's time off with other employees who request time off to vote?

Probably.  Again, the statute does not address whether an employer may coordinate the employees’ time away to vote in order to minimize disruption or ensure proper staffing, it is likely that an employer can do so as long as the employer gives the employee sufficient time off to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work.

Take-away

Minnesota employers must provide employees time off with pay on election day (including state primaries).  The amount of time must be sufficient to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work.