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Employee Handbooks

Employee Handbooks are an important and effective way for employers to document policies and procedures in writing and to ensure consistency in employee management as well as to make sure that all employees and managers know the policies, procedures and rules of the company. Putting together an Employee Handbook is an excellent way to communicate policies and procedures to all employees and managers and assist the employer in developing a way to manage its business. When properly drafted, handbooks can be an excellent tool for employers, but if improperly drafted or if templates are used without having someone familiar with state and federal law reviewing them, it can do more damage than good. Employers should have an attorney familiar with state labor and employment laws review their employee handbooks to make sure it complies with State and Federal law.

Minnesota Employers Should Review and Revise Policies to Comply with WESA:

The Women’s Economic Security Act (WESA) that was signed into law by Governor Mark Dayton this past Mother’s Day will impact most employers in the state of Minnesota. The law is intended to improve the working conditions for women and provide greater benefits to mothers and expectant mothers. Employers should review their policies, procedures and handbooks to comply with WESA.

Pregnancy Accommodations:
An employer must provide reasonable accommodations to an employee for health conditions related to pregnancy or childbirth if she so requests, with the advice of her licensed health care provider or certified doula, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer’s business. A pregnant employee shall not be required to obtain the advice of her licensed health care provider or certified doula, nor may an employer claim undue hardship for the following accommodations:

  1. More frequent restroom, food, and water breaks;
  2. Seating; and
  3. Limits on lifting over 20 pounds.

The employee and employer shall engage in an interactive process with respect to an employee’s request for a reasonable accommodation. “Reasonable accommodation” may include, but is not limited to, temporary transfer to a less strenuous or hazardous position, seating, frequent restroom breaks, and limits to heavy lifting.  An employer shall not be required to create a new or additional position in order to accommodate an employee, and shall not be required to discharge any employee, transfer any other employee with greater seniority, or promote any employee.

An employer may not require an employee to take leave or to accept an accommodation. Rather, employers and employees are required to engage in the interactive process with respect to the employee’s request for reasonable accommodation. Under the law, employers are also prohibited from retaliating against an employee for requesting or obtaining a pregnancy accommodation. Minn. Stat § 181.9414.

Minnesota Human Rights Act Protects Familial Status:

The MHRA now prohibits employment discrimination based on familial status.
Familial status is defined in the MHRA as a:

  1. Parent, guardian or designee of a parent or guardian that lives with at least one minor or
  2. A person who is pregnant or is in the process of securing legal custody of a minor. See, Minn. Stat. 363A.03, Subd. 18. The familial status protection covers any person who is pregnant or is in the process of securing legal custody of a minor.

Amendments to Minnesota Parenting Act

As of July 1, 2014, the Minnesota Parenting Act will provide up to twelve weeks of unpaid leave for:

  1. A biological or adoptive parent in conjunction with the birth or adoption of a child; or
  2. A female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions.

The length of the leave shall be determined by the employee, but must not exceed 12 weeks, unless agreed to by the employer.  The leave shall begin at a time requested by the employee. The employer may adopt reasonable policies governing the timing of requests for unpaid leave and may require an employee who plans to take a leave under this section to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave. The leave must begin within 12 months of the birth or adoption; except that, in the case where the child must remain in the hospital longer than the mother, the leave must begin within 12 months after the child leaves the hospital.

The employer must continue to make coverage available to the employee while on leave of absence under any group insurance policy, group subscriber contract, or health care plan for the employee and any dependents. The employer is not required to pay the costs of the insurance or health care while the employee is on leave of absence.

This leave may be reduced by any period of paid leave or vacation, as well as leave under the FMLA, if applicable. The total required leave should not exceed 12 weeks.

An employer may not retaliate against an employee for requesting or obtaining a leave of absence under Minnesota’s Parenting Leave law. Minn. Stat. § 181.941.

Protection for Nursing Mothers:

An employer must provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. The break time must, if possible, run concurrently with any break time already provided to the employee. An employer is not required to provide break time if to do so would unduly disrupt the operations of the employer.

The employer must make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy. The employer would be held harmless if reasonable effort has been made.

An, “employer” means a person or entity that employs one or more employees and includes the state and its political subdivisions. Minn. Stat. § 181.939

Employers are prohibited from retaliating against employees who assert their rights under this law. Further, an employee may bring a civil action against an employer who violates this law and recover damages, including costs and reasonable attorneys’ fees in addition to injunctive and other equitable relief. An employer may defend a claim by showing that it made a reasonable effort to comply with the law’s requirements.

The Division of Labor Standards and Apprenticeship will investigate administrative complaints brought under this law by contacting the employer within two business days and investigating the complaint within ten days of the receipt of the complaint.

In addition, under Minnesota law, a mother may breast-feed in any location, public or private, where the mother and child are otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breast-feeding. Minn. Stat. § 145.905.

Retaliation under WESA:

Under WESA, Minnesota law prohibits employers from:

  1. Requiring nondisclosure by an employee of his or her wages as a condition of employment;
  2. Requiring an employee to sign a waiver or other document which purports to deny an employee the right to disclose the employee’s wages; or
  3. Taking any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.

Employees are not permitted to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege or protected by law without the written consent of the employer. Employees also are prohibited from disclosing wage information of other employees to an employer’s competitor. Employers are required to include a notice of the employee’s rights and remedies under the law in their employee handbooks.
The law prohibits employers from retaliating against an employee for asserting their rights under this law. Further, employees are permitted to bring a civil action against their employer if their employer prohibits them from disclosing their wages or retaliates against them for asserting their rights under this law. If a court finds that the employer has violated the law, the court may award damages, costs, attorneys’ fees and/or order reinstatement, back pay, restoration of a lost service credit, or the expungement of any related adverse records of an employee who was the subject of the violation.Minn. Stat. § 181.172.

Ensuring equal pay to close gender pay gap:

Effective Aug. 1, 2014, WESA provides equal pay laws to close the gender pay gap:through increased enforcement of equal pay laws for state contractors by requiring businesses with 40 or more employees seeking state contracts of more than $500,000 to certify they pay equal wages to workers regardless of gender.

Safe leave:

The WESA law allows employees to use existing earned sick leave to recover from sexual assault, domestic violence or stalking and will expand unemployment insurance eligibility on Oct. 5, 2014, to include victims of stalking and sexual assault.

Workforce recruitment and training:

WESA expands support for employers, workforce organizations and others to recruit, prepare, place and retain women in nontraditional occupations and apprenticeships, especially low-income and older women. Plus, it supports the development of high-economic-impact, women-owned businesses in nontraditional industries.

Retirement security:

WESA enhances retirement security by initiating a study of a state retirement savings plan for those without an employer-provided option.

If you need assistance with updating your company’s employee handbook or policies, please contact me.

John C. Holden
Holden Law Firm
5200 Willson Road, Suite 150
Edina, MN 55424
952-836-2640
John@holdenlawfirm.com
www.holdenlawfirm.com

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