2020 Minnesota, North Dakota, and Wisconsin Labor & Employment Law Year-End Update
Minneapolis, Minn. (January 7, 2020) - Unlike most states, it was a relatively quiet year in terms of legislative updates and judicial opinions in the employment law context in Minnesota, North Dakota, and Wisconsin. Below is a summary of the major legal updates in each of these states in 2020.
Workers’ Compensation and Rebuttable Presumption for Exposure to COVID-19
On April 7, 2020, Governor Tim Walz approved the amendment of Minnesota’s Workers’ Compensation Act, Minn. Stat. §176, et al. Specifically, this amendment creates a rebuttable presumption that an individual who contracts COVID-19 is presumed to have an “occupational disease” arising out of and in the court of employment, provided they meet the following requirements:
- The employee is a licensed peace officer; firefighter; paramedic; nurse or health care worker; correctional officer; security counselor at a corrections, detention, or secure treatment facility; emergency medical technician; health care provider or assistive employee in a long-term care or home health care setting; or child care provider to first responders and health care workers.
- The employee has a confirmed COVID-19 test with appropriate documentation from a laboratory or health care provider.
This presumption of an “occupational disease” can only be rebutted if the employer can demonstrate that the employment was not the direct cause of the contraction of COVID-19. If the employer is unable to rebut this presumption, the employee shall be eligible for workers’ compensation benefits with the date of the injury being the date the employee was unable to work due to the COVID-19 diagnosis or due to symptoms that were later diagnosed as COVID-19, whichever occurred first.
Minneapolis Sick and Safe Time Ordinance Does Not Violate State Law
In May 2016, Minneapolis City Council passed the Sick and Safe Time Ordinance (SST). Pursuant to the SST, employees who work in the City of Minneapolis for at least 80 hours a year accrue at least one hour of sick and safe time for every 30 hours worked in a calendar year, up to a maximum of 48 hours. Employers must allow employees to carry over unused sick and safe time into the next year; however, the total amount of sick and safe time cannot exceed 80 hours in a calendar year. An “employee” is defined as “any individual employed by an employer . . . who performs work within the geographical boundaries of the city for at least eighty (80) hours in a year for that employer.”
Employees can use the sick and safe time for a variety of reasons, including the employees’ own mental or physical illness, the need to care for a sick family member, an absence due to domestic violence or sexual assault, or for workplace and school closures due to emergencies. An employer can require up to seven days’ advance notice for the use of such leave unless the need for the leave is unforeseeable. Employers are also required to post a notice of rights under the SST and to track the amount of sick and safe time accrued by the employee. An employer is prohibited from interfering with an employee’s use of such leave as well as from retaliating against an employee who takes this paid leave.
In October 2016, the Minnesota Chamber of Commerce sued the City, alleging that the SST was invalid because it was preempted by state law and violated the extraterritoriality doctrine. In this case, the state district court found that the SST did not violate state law. However, the district court temporarily enjoined the City from enforcing the SST against any employer “resident outside the geographical boundaries of the City” because it had an impermissible extraterritorial effect.
Both the City and the Chamber appealed the district court’s decision, which was affirmed by the Minnesota Court of Appeals. The Minnesota Supreme Court affirmed this decision on June 10, 2020, which finally ended the debate concerning whether the SST was enforceable as well as who was considered to be an eligible employee for purposes of accruing such paid sick and safe time leave.
The Minnesota Supreme Court’s decision is important as it will result in not only the City of Minneapolis continuing to enforce the SST, but also in other cities such as St. Paul and Duluth (where ordinances went into effect January 1, 2020) to similarly enforce their respective paid sick and safe time ordinances.
Minneapolis Minimum Wage Ordinance is Lawful
Another Minneapolis ordinance came under fire and, ultimately, the Minnesota Supreme Court held it to be lawful in 2020.
In June 2017, the Minneapolis City Council passed the Municipal Minimum Wage (Ordinance), which established a higher minimum wage for hours worked by employees within the City’s geographical boundaries. Effective July 1, 2020, the City’s minimum wage was $13.25 per hour for “large” employers (those with more than 100 employees) and $11.75 per hour for “small” employers (those with less than 100 employees). In contrast, at that same time, the state minimum wage under the Minnesota Fair Labor Standards Act (MFLSA) was $10 per hour for “large” employers (those with annual gross earnings of $500,000 or more) and $8.15 per hour for “small” employers (those with annual gross earnings of less than $500,000).
In Graco, Inc. v. City of Minneapolis, the Minnesota Supreme Court examined whether the MFLSA preempted this Ordinance and, thereby, was invalid. The Court determined that the Ordinance was not in conflict with the MFLSA despite the fact that the state minimum wage permitted large and small employers to pay less than what the Ordinance prescribed. The Court stated that the MFLSA established the minimum hourly wage, but “clearly contemplate[d] the possibility of higher hourly rates.” As a result, the Ordinance was not contrary to the MFLSA.
Further, the Minnesota Supreme Court found that the definitions of “large” and “small” employers under the Ordinance did not conflict with those definitions under the MFLSA. The Court determined that the differing minimum wage based on number of employees versus revenue did not alter the employers’ obligations to pay “at least” the minimum wage set forth under the MFLSA.
“Severe or Pervasive” Standard for Harassing Conduct Under Minnesota Human Rights Act
In Kenneh v. Homeward Bound, Inc., the Minnesota Supreme Court analyzed what the standard should be to support a claim of hostile work environment sexual harassment under the Minnesota Human Rights Act (MHRA). The plaintiff argued that the Court should abandon the “severe or pervasive” standard when analyzing sexual harassment claims based on hostile work environment under the MHRA because that statute directs courts to interpret it “liberally.” According to the plaintiff, the “severe or pervasive” standard results in an inconsistent application of the statute where federal courts tend to interpret this standard “archaically” instead of according to the liberal interpretation edict issued by the MHRA.
Despite these arguments, the Minnesota Supreme Court refused to abandon the “severe or pervasive” standard when analyzing such claims under the MHRA. That said, the Court clarified this standard for claims under the MHRA. The Minnesota Supreme Court explained that the “severe or pervasive standard” must evolve to “reflect societal attitudes towards what is acceptable behavior in the workplace.” The Court stated that reasonable people would not tolerate behavior that courts previously brushed aside as “boorish, chauvinistic, and decidedly immature.” Instead, the Minnesota Supreme Court declared that there must be an examination of the “totality of circumstances,” including the frequency and severity of the conduct, whether the conduct was physically threatening or humiliating, or a mere offensive statement, and whether the conduct unreasonably interfered with the individual’s employment.
The Court also cautioned lower courts from usurping the role of a jury when analyzing these claims on summary judgment, stating that the issue of whether the alleged conduct was severe or pervasive was generally a question for the jury. It explained that if a reasonable person would find that the alleged conduct was sufficiently severe or pervasive, summary judgment should be denied.
Sexual Orientation and Gender Identity Charges of Discrimination Now Investigated
On June 18, 2020, the North Dakota Department of Labor and Human Rights (Department) announced that it now would accept and investigate Charges of Discrimination based on sexual orientation and gender identity, which previously were not investigated.
The Department explained that the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia on June 15, 2020 clarified the definition of “sex” for purposes of protection against discrimination. As the Department noted, the Bostock opinion declared that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or acquisitions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Effective June 15, 2020, the Department will investigate these claims, which can include witness interviews, production of documents, and the issuance of subpoenas as a result of the 2019 amendments to the N.D.C.C. §34-14-05.
Student Data Privacy and Security Policy
The North Dakota University System and its institutions (NDUS) enacted the Student Data Privacy and Security Policy (Policy), which was the first of its kind in the nation to address student data privacy. This Policy became effective on May 29, 2020.
While NDUS must still comply with the federal requirements under the Federal Education Rights and Privacy Act (FERPA), this Policy provides additional rights to higher education students, including an ability to access their personally identifiable information (PII) and to regulate how NDUS collects and uses this PII. Additionally, NDUS is prohibited from selling, releasing, or disclosing “non-directory” information for commercial or advertising use. “Directory information” is public record information.
Finally, similar to the rights under FERPA, students have the right to inspect, review, and challenge the accuracy and completeness of their academic record.
New Separation Notice Requirements
Pursuant to an Emergency Rule issued by the Wisconsin Department of Workforce Development (WDWD), Wisconsin employers are required to notify workers at separation about the availability of unemployment insurance benefits. This notice requirement became effective on November 2, 2020.
Employers are only required to inform the employee, in writing, that he or she can apply for unemployment insurance benefits at the time of separation. The WDWD recommended the following suggested notice language, “You may file an unemployment claim in the first week that your employment stops or your hours are reduced.” This notice requirement applies to all Wisconsin employers, regardless of size.
Qualification Certificate for Employment of Persons Convicted of Certain Crimes
2019 Wisconsin Act 123, which was signed into law on March 3, 2020, created a procedure for granting certificates of qualification of employment for individuals convicted of a crime and making appropriation. The individual must file an application for the certificate of qualification from the Council on Offender Employment and present this to prospective employers. Individuals eligible for this certificate are offenders who have been released from confinement and who have served at least 24 consecutive months in Wisconsin state prison or 12 consecutive months in the state prison and 12 consecutive months of extended supervision. Persons convicted of a violent crime are not eligible.
Under this law, an employer who hires an individual with this certificate is immune from liability for the intentional acts or omissions of the employee, acts of the employee that occur outside the course of employment, and claims of negligent hiring, retention, training, or supervision unless the employer acted “maliciously towards the plaintiff or with intentional disregard of the rights of the plaintiff.”
For more information on these laws and cases discussed above, contact the author or editor of this alert, or visit our Labor & Employment Practice page to find an attorney in your area.
Tina A. Syring, Partner
Jade McKenzie, Associate