Minnesota Employment Rights: Where to Get Help | Attorney Aaron Hall

Minnesota Employment Rights: Where to Get Help

Introduction

The following material was prepared by the Minnesota Office of Attorney General to assist those seeking legal help for violations of Minnesota employment law.

Wages

Some employees receive less in wages than they expect.  This might occur because an employer does not pay for all hours worked, makes unexpected deductions from wages, misses a scheduled payday, or simply fails to pay employees at all.  Here are some of the Minnesota laws that apply to wages:

  • State Minimum Wage
    Minnesota law requires an employer to pay an employee a minimum hourly wage and overtime after 48 hours of work each week.  (Minn. Stat. §§ 177.24.25.)  Some cities, including Minneapolis and Saint Paul, have enacted local minimum wage ordinances that require some employers to pay an hourly wage that is higher than the state minimum wage.  These ordinances are enforced locally.  Employees can contact their city or county government to determine whether their jobs are covered by a local ordinance.
  • Federal Minimum Wage
    Federal law also applies to many large Minnesota employers.  Federal law requires an employer to pay overtime after 40 hours of work each week.  (29 U.S.C. § 207.)
  • Regular Paychecks
    Minnesota law generally requires employers to pay employees wages on a regularly scheduled payday at least once every 31 days.  (Minn. Stat. § 181.101.)
  • Payment on Separation
    When an employer discharges an employee, the employer is required to immediately pay wages or commissions actually earned and unpaid.  (Minn. Stat. § 181.13.)  When an employee quits, the employer is usually required to pay wages due not later than the first regularly-scheduled payday following the employee’s last day of work.  (Minn. Stat. § 181.14.)  If an employer fails to pay the full wages owed, and if the employee submits a written demand for payment, the employer may have to pay a penalty if the employer fails to pay within 24 hours.  (Minn. Stat. §§ 181.13.14.)
  • Deductions
    An employer may not make wage deductions without the employee’s written agreement except in limited circumstances.  (Minn. Stat. §§ 177.24, subd. 4181.79.)  For instance, the Minnesota Supreme Court ruled that a bar could not take servers’ tips when the cash register was short or customers walked out without paying their tabs.  (See Karl v. Uptown Drink, 835 N.W.2d 14 (Minn. 2013)).
  • State Regulator
    The Minnesota Department of Labor and Industry is the state agency with authority to investigate violations of and enforce Minnesota’s wage and hour laws. (Minn. Stat. § 177.27.)  The Department can be contacted as follows:

Minnesota Department of Labor and Industry
443 Lafayette Road North
St. Paul, MN  55155
(651) 284-5070
[email protected]
www.doli.state.mn.us

  • Federal Regulator
    The United States Department of Labor is the federal agency with authority to enforce federal wage and hour laws.  The Department can be contacted as follows:

United States Department of Labor
Wage and Hour Division
Tri-Tech Center, Suite 920
331 Second Avenue South
Minneapolis, MN 55401-2233
(612) 370-3341 or (866) 487-9243
www.dol.gov

  • Private Claims 
    In most cases, employees may also bring their own cases in court to seek money owed, liquidated damages, penalties, and attorney fees. (Minn. Stat. §§ 177.27, subd. 8181.171.)

Benefits

Minnesota law generally doesn’t require employers to provide employees with fringe benefits in addition to wages.  Some employees receive benefits at work, like vacation, sick time, and employer contributions to retirement.  These benefits are based on an agreement between an employer and employee.  An employer that does not pay agreed upon benefits to an employee may be subject to a “breach of contract” claim in court.

Other benefits are required by law:

  • Parental Leave under State Law 
    Minnesota law requires employers with 21 or more employees to provide unpaid parental leave for up to 12 weeks when an employee’s child is born or adopted.  (Minn. Stat. §§ 181.940.941.)  Minnesota’s sick leave law requires employers that employ 21 or more employees to allow employees to use their paid sick leave to care for spouses, children, parents, grandchildren, and grandparents.  (Minn. Stat. §§ 181.940181.9413.)  The Minnesota Department of Labor and Industry is the state agency with authority to investigate and enforce Minnesota’s parental and sick leave laws.  (Minn. Stat. § 177.27.)  (See above for contact information.)
  • Parental Leave under Federal Law 
    The federal Family & Medical Leave Act (FMLA) generally requires public employers and private employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave per year for an eligible employees who are ill or need to care for immediate family members with serious health conditions.  (29 U.S.C. § 2611, et seq.)  The United States Department of Labor is the federal agency with an authority to enforce the FMLA.  (See above for contact information.)
  • Private Claims 
    If an employer violates these laws, an employee may also sue the employer and seek damages, attorney fees, and other relief from a court.  (Minn. Stat. § 181.944.)
  • Local Ordinances
    Some cities, including Minneapolis and Saint Paul, have enacted ordinances requiring some employers to provide sick leave benefits.  These ordinances are enforced locally.  Employees can contact their city or county government to determine whether their job is covered by a local ordinance.

Personnel Files

An employer’s personnel file might provide information that would be of assistance to an employee.

  • Your File
    Minnesota law requires an employer to provide an employee’s personnel file to the employee upon request if the employee makes the request in good faith. (Minn. Stat. § 181.961.)  A current employee may request to review the file every six months.  An ex-employee may review the file once per year so long as the employer maintains the file. (Minn. Stat. § 181.961, subd. 1.)
  • Inspection Rights
    An employer must comply with an employee’s written request to review the file within 7 working days if the record is located in Minnesota and within 14 working days if the record is located outside of Minnesota.  (Minn. Stat. § 181.961, subd. 2.)   The employer may not charge a fee for a copy. (Minn. Stat. § 181.961, subd. 2.)
  • Disputing Information
    If an employee disputes specific information in the employee’s personnel record, and if the employer and employee cannot agree to remove or revise the disputed information, the employee may submit a written statement explaining the employee’s position regarding the disputed information.  (Minn. Stat. § 181.962, subd. 1.)
  • State Regulator 
    The Minnesota Department of Labor and Industry is the state agency with authority to enforce Minnesota’s statutes governing personnel files.  (Minn. Stat. § 181.9641.)  (See above for contact information.)

Employee or Independent Contractor

Some workers have difficulty figuring out whether they are an employee or independent contractor.  Minnesota’s wage and hour laws do not apply if the worker is considered to be an independent contractor under Minnesota law.  Whether a worker is an independent contractor or an employee is a complicated issue, based on a number of factors.  Generally, a worker is an employee when an employer controls when the worker works, what the worker does, and how the worker does his or her job.  A worker is an independent contractor when the worker controls when, where, and how a job gets done.  (See, e.g., Minn. Stat. §§ 176.043181.723Minn. R. ch. 5224.)  You may wish to consult with an attorney if you have questions whether you are an employee or independent contractor.

Working Conditions

The state and federal Occupational Safety and Health Act (OSHA) laws require employers to provide employees with a safe and healthy work environment free from any known hazards that can cause death, injury, or illness.  Employers must provide employees with information about any hazardous chemicals or harmful physical agents that the employees may be exposed to at work.  Employers must also provide employees with necessary personal protective equipment and training.

  • The Department of Labor and Industry is the state agency with authority to investigate and enforce OSHA violations.  (See above for contact information.)  Employees may file a complaint with the Minnesota Department of Labor and Industry regarding health and safety hazards in the workplace.  Minnesota law prohibits an employer from retaliating or discriminating against an employee for reporting a workplace safety concern.  (Minn. Stat. § 182.669.)
  • An employee who believes he or she was discriminated against for making an OSHA complaint may also bring his or her own discrimination case in district court. (Minn. Stat. § 182.669, subd. 1.)

Whistleblower Protection

Minnesota’s Whistleblower Act prohibits an employer from firing, disciplining, threatening, or otherwise discriminating against an employee because the employee, in good faith, reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law, or refuses an employer’s order to perform an action that the employee objectively believes violates such a law.  (Minn. Stat. § 181.932.)  An employee who is retaliated against in violation of the Act may bring a private civil action in court to enforce the Act.  (Minn. Stat. § 181.935.)

Employment Discrimination

If you are an “at will” employee, your employer generally does not need a reason to fire you.  The Minnesota Human Rights Act, however, does generally prohibit a Minnesota employer from discriminating against an employee or job applicant based on the employee’s membership in a protected class, unless it is a bona fide occupational qualification.  (Minn. Stat. § 363A.08, subd. 2.)

  • Race, color, creed, religion, national origin, sex, marital status, familial status, disability, status with regard to public assistance, membership or activity in a local commission, sexual orientation, and age are protected classes for employment purposes.
  • The Minnesota Department of Human Rights is the State agency with authority to investigate and enforce violations of the Human Rights Act.  (Minn. Stat. § 363A.28.)  The Department may be contacted as follows:

Minnesota Department of Human Rights
Freeman Building
625 Robert Street North
St. Paul, MN 55155
(651) 539-1100 or (800) 657-3704
mn.gov/mdhr

  • An employee may also file a discrimination claim with the federal Equal Employment Opportunity Commission.  The Commission has the authority to enforce similar federal laws prohibiting employment discrimination.  The Commission may be contacted as follows:

Equal Employment Opportunity Commission
Towle Building
330 South Second Avenue, Suite 720
Minneapolis, MN 55401-2224
(800) 669-4000
www.eeoc.gov

New 2019 Employee Rights Laws in Minnesota

The Minnesota Legislature passed and the governor has signed a new Minnesota Wage Theft Law. The new law amends existing state labor laws and provides for new wage and hour requirements, protections and sanctions. This guidance highlights provisions of the new law that will provide additional information and protections to employees.

All provisions of the new law go into effect July 1, 2019, except for the provisions of the new law that amend Minnesota Statutes § 609.52 (criminal wage theft and sanctions). The provisions of the new law provided for criminal wage theft and sanctions go into effect Aug. 1, 2019.

A full summary of the new Wage Theft Law is online at www.dli.mn.gov/sites/default/files/pdf/wage_theft_law_summary.pdf.

Questions and answers about the new Wage Theft Law are online at www.dli.mn.gov/business/employmentpractices/wage-theft-qa.

The complete text of the new law is online at www.revisor.mn.gov/laws/2019/1/Session+Law/Chapter/7/.

New protections for employees

Additional information employers are required to provide to employees when they start work (amendments to Minn. Stat. § 181.032)

Employers are now required by Minnesota law to provide written notice to employees about their employment status and terms of employment, including wages, hours and benefits.

The new Wage Theft Law requires all employers to provide each employee with a written notice at the start of their employment. The notice must contain the following specific information about an employee’s employment status and terms of employment (New).

Below is the specific information employers must provide in the notice to employees when they start employment.

  1. Migrant workers are entitled to additional protections under Minn. Stat. §§ 181.85-181.91.
  2. Employees in the meatpacking industry are also entitled to additional notice under Minn. Stat. § 179.86.
  3. Employees working for employers employing 10 or more employees, who are not farm laborers or casual employees employed temporarily, should also receive written agreement requirements as listed under Minn. Stat. § 181.55-181.57

• Employee’s employment status and whether an employee is exempt from minimum wage, overtime and other state wage and hour laws, and on what basis (New).

• Number of days in the employee’s pay period and the regularly scheduled payday (New).

• Date the employee will receive the first payment of wages earned (New).

• Employee’s rate or rates of pay and the basis thereof, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission or other method and the specific application of any additional rates (New).

• Allowances, if any, that may be claimed for permitted meals and lodging (New).

• Provision of paid vacation, sick time or other paid time off (PTO), how the paid time off will accrue and terms for its use (New).

• A list of deductions that may be made from the employee’s pay (New).

• Employer’s legal name and the operating name, if different (New).

• Physical address of employer’s main office or principal place of business and a mailing address, if different (New).

• Employer’s telephone number (New).

Employers are required to keep a copy of the notice signed by each employee (New). All employers must provide the notice to employees in English. The notice must include a statement, in multiple languages, that informs employees they may request the notice be provided to them in another language (New). The employer must provide the notice in another language if requested by the employee (New). Employers are also required to provide employees in writing any changes to the information in the notice before the date the changes take effect (New).

The Department of Labor and Industry (DLI) has created an employee notice example that is online at www.dli.mn.gov/sites/default/files/doc/employee_notice_form.docx. Employers may use the example notice or create their own.

Additional information employers are required to provide to employees on earnings statements (amendments to Minn. Stat. § 181.032)

Earnings statements (or paystubs) are important payroll records for employers and employees that document information about wages paid, hours worked, deductions made and benefits accrued by an employee. Existing state law requires earning statements be provided to employees in writing or by electronic means at the end of each pay period and specific information be included on the earnings statement. (Employees may request the earning statement be provided in writing instead of by electronic means. If the earnings statement is provided by electronic means, the employer must provide the employee access to an employer-owned computer during an employee’s regular working hours to review and print earnings statements.) The new law requires the following additional information be included on the earnings statements provided to employees each pay period:

• Name of the employee.

• Total hours worked by the employee in the pay period.

• Employee’s rate or rates of pay and basis thereof, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission or another method (New).

• Allowances claimed for permitted meals and lodging (New).

• Total amount of gross pay earned by employee in the pay period.

• Net amount of pay after all deductions are made.

• List of deductions made from the employee’s pay.

• Date pay period ended.

• Employer’s legal and operating name.

• Employer’s telephone contact (New).

• Physical address of employer’s main office or principal place of business and a mailing address, if different (New).

Employees should keep copies of their earnings statements and review them each payday to ensure they accurately reflect the hours worked and pay received. It is also recommended that employees record the hours they work each day, the rate or rates of pay for the hours they worked and any deductions that would be made from their wages.

Clarifications and requirements for what wages and commissions an employer must pay and when employers must pay wages and commissions to employees (amendments to Minn. Stat. § 181.101)

Employers must pay all wages, including salary, earnings and gratuities (New) earned by an employee at least once every 31 days and all commissions earned by an employee at least once every three months (New) on a regular payday.

The new Wage Theft Law further clarifies that Minn. Stat. § 181.101 provides a substantive right to the payment of commissions and wages, at the employee’s rate or rates of pay or the rate or rates required by law, whichever is greater, as well as the right to be paid wages and commissions earned on a regular payday (New).

New: Employers must not retaliate against employees for asserting rights or remedies under Minnesota’s wage and hour laws (amendments to Minn. Stat. § 181.03)

An employer is prohibited from retaliating against an employee for asserting rights or remedies under the Minnesota Fair Labor Standards Act, the Minnesota Prevailing Wage Act and certain provisions of Minn. Stat., Chapter 181, Payment of Wages Act, including filing a complaint with DLI or telling the employer of the employee’s intention to file a complaint. In addition to any other remedies provided by law, an employer that violates this subdivision is liable for a civil penalty of $700 to $3,000 for each violation.

New: Commissioner required to share enforcement action information (amendments to Minn. Stat. § 177.27)

DLI, its commissioner or its authorized representative shall provide a copy of an order to comply issued to an employer and the disposition of the order or the data set out in the order to comply and its disposition to the following entities:

• A licensing or regulatory authority of one or more state agencies or agencies of political subdivision to which the employer is subject.

• A public contracting authority with which the employer is party to a public contract.

• The employees whose interests are affected by the order.

Misdemeanor violations (amendments to Minn. Stat. § 177.32)

Under existing law, an employer found to have hindered or delayed the commissioner in the performance of duties required under the Minnesota Fair Labor Standards Act or the Prevailing Wage Act was guilty of a misdemeanor. The new Wage Theft Law adds that any employer hindering or delaying the commissioner in the performance of duties required under Minn. Stat. §§ 181.01 to 181.723 or 181.79 is also guilty of a misdemeanor (New).

New: Crime of “wage theft” and criminal sanctions for committing “wage theft” (amendments to Minn. Stat. § 609.52)

The crime of “wage theft” occurs when an employer, with intent to defraud:

• Fails to pay an employee all wages, salary, gratuities, earnings or commissions at the employee’s rate or rates of pay or at the rate or rates required by law, whichever is greater.

• Directly or indirectly causes any employee to give a receipt for wages for a greater amount than that actually paid to the employee for services rendered.

• Directly or indirectly demands or receives from any employee any rebate or refund from the wages owed the employee under contract of employment with the employer.

• Makes or attempts to make it appear in any manner the wages paid to any employee were greater than the amount actually paid to the employee.

“Employer” is defined as “any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.”

“Employee” is defined as “any individual employed by an employer.”

“Wage theft” has been added to the criminal definition of theft under Minn. Stat. § 609.52, subd. 2(19), and sanctions for committing wage theft are as follows:

• Imprisonment for not more than 20 years, payment of a fine of not more than $100,000 or both if the value of the wages stolen is more than $35,000.

• Imprisonment for not more than 10 years, payment of a fine of not more than $20,000 or both if the value of the wages stolen exceeds $5,000.

• Imprisonment for not more than five years, payment of a fine of not more than $10,000 or both if the value of wages stolen is more than $1,000 but not more than $5,000.

• Imprisonment for not more than one year, payment of a fine of not more than $3,000 or both if the value of the property or services stolen is more than $500 but not more than $1,000.

When determining the value of the wages stolen, the law allows for the amount of employee wages that were stolen through wage theft to be aggregated within any six-month period.

What employees can do if they are not paid all the wages due to them within the time required by the law

Contact DLI

If you have questions about the new Wage Theft Law or believe your employer has violated any provision of the Minnesota Fair Labor Standards Act, the Minnesota Prevailing Wage Act or provisions of the Minnesota Payment of Wages Act, or retaliated against you for asserting your rights under these laws, call the Minnesota Department of Labor and Industry’s Labor Standards at 651-284-5075. The identity of persons who contact the department for information or to make a complaint is kept confidential by the department.

• If your employer fails to pay you all your wages and/or fails to pay them timely, the commissioner may order the employer to pay the wages you have earned at the rate or rates of pay you and your employer agreed to or the rate or rates required by law or contract, whichever is greater.

• In addition, the commissioner may also order the employer to pay an amount equal to the wages you have earned as liquidated damages and/or pay a penalty equal to either your average daily earnings at the same rate or rates or pay a penalty equal to 1/15th of the commissions earned but unpaid for each day payment is not made in response to the commissioner’s order.

File a lawsuit in court

• Small claims court is for amounts in dispute of $15,000 or less (no attorney required).

• District court is for amounts in dispute greater than $15,000.

Conclusion