On July 1, 2017, the Minneapolis Sick and Safe Leave Ordinance and the St. Paul Earned Sick and Safe Time Ordinance are scheduled to take effect. Businesses with employees in Minneapolis or St. Paul that have not yet become familiar with these ordinances should do so now to prepare to comply with the new laws.
Current Litigation and Enforcement Rules Define Employer as City Resident
Both ordinances define “employer” as a person or entity that employs one or more employees. A collection of business associations and individual employers challenged the Minneapolis ordinance on the grounds it is preempted by Minnesota state law. On January 19, 2017, a Hennepin County District Court judge partially granted the plaintiffs’ motion and issued a temporary injunction prohibiting the City of Minneapolis from enforcing its ordinance against any employer located outside the city’s geographic boundaries. Both parties have appealed the order but oral argument is not scheduled to be heard until July 11, 2017, in part because the Minnesota appellate courts both denied requests for expedited or accelerated review. Until a final decision is issued, however, the City of Minneapolis will not enforce the application of its ordinance against any employer residing outside the city.
Notably, St. Paul’s published rules provide that employees are covered by the ordinance only if their employer has a physical location in the City of St. Paul and if they perform work at that location or another location in the city.
No Preemption by State Law
Both the Minnesota Senate and House of Representatives passed the Uniform State Labor Standards Act bill (H.F. 600 and S.F. 580), which provide for uniformity of private employer mandates relating to local governments by preempting local ordinances, including municipal safe and sick leave and wage ordinances. Yesterday, Governor Dayton vetoed the bill. At the federal level, however, House Republicans may introduce legislation that would shield employers from state and local paid leave requirements if they provide employees paid time off for family and medical reasons.
Although not identical, the Minneapolis and St. Paul ordinances overlap on many requirements. Both provide that eligible employees can earn up to 48 hours per year at the rate of one hour of sick leave per 30 hours worked in the applicable city. To be eligible to accrue paid sick leave, employees must perform work within the geographic boundaries of the city for at least 80 hours per year for an employer. Employers that offer a paid-leave policy (e.g., paid time off or a combination of paid sick and vacation time) that provides the same or more generous accrual and use of leave than the ordinance’s requirements are not required to provide additional earned sick and safe time leave. However, such employers are not necessarily exempt from other provisions of the ordinances, including the following notice and recordkeeping requirements.
Posting – Employers must display the required poster in a conspicuous place at any workplace or job site in any languages spoken by 5 percent or more of employees at the workplace or job site.
Employee Handbook – Employers that provide employee handbooks must also include a copy of the workplace poster or other notice of the ordinance’s rights and remedies.
Upon Request – At an employee’s request, the employer must provide a written or electronic notification of the employee’s then-current amount of available accrued sick and safe time (SST), and used SST. Employers can determine a reasonable system to provide such required information, including by listing the information on each pay stub or an online system where employees can access their own information.
Methods of Notice – To fulfill its notice requirements under the ordinance, employers must distribute or post written policies by either:
- Regularly distributing to each employee by mail or email
- Globally distributing to employees through newsletters, check stubs or posting on company intranet
- Posting the information in a conspicuous and accessible place in each establishment where its St. Paul employees are employed
Specifically, employers may comply with the notice requirements by displaying the model poster, which shall be displayed in English and any other languages deemed necessary.
Employee Handbook – Employers that provide employee handbooks must also include notice of the ordinance’s rights and remedies. If the employer provides PTO to meet their earned sick and safe time (ESST) requirement, then the employer’s written policy must inform employees of their right to ESST and that it is being met by PTO.
Upon Request – At an employee’s request, the employer must provide within 24 hours a written or electronic notification of the employee’s then-current amount of available and used ESST. Employers can determine a reasonable system to provide such required information, including by listing the information on each pay stub or an online system where employees can access their own information.
Minneapolis – For three years, in addition to other employment and payroll records, employers must accurately document hours worked (for non-exempt employees), hours of leave available for SST purposes, and hours of leave used for SST purposes. Upon notice, access to such documents must be provided to employees and the Minneapolis Department of Civil Rights for enforcement and investigation purposes. For employees who occasionally perform work in the city, employers may track hours worked in the city to initially determine whether the employee meets the 80-hour threshold. When an employee meets – or an employer assumes an employee meets – the initial threshold, hours worked in the city need not be specifically tracked. For exempt, salaried employees, it is sufficient for employers to document such status to demonstrate an equivalent 40-hour work week, provided that it is used as the basis for calculating accrued SST. If an employer provides PTO that meets the minimum requirement of the ordinance, the employer is not required to maintain records showing employees’ reasons for use of their PTO; it is sufficient for employers to maintain records that demonstrate an employee received and was allowed to use PTO for purposes covered by the ordinance.
St. Paul – For three years, employers must accurately document each employee’s hours worked in St. Paul and accrued and used ESST. Copies of such documents must be provided, upon request, to employees and to the St. Paul Department of Human Rights & Equal Employment Opportunity for enforcement and investigation purposes. Here again, if an employer provides PTO that meets the minimum requirement of the ordinance, the employer should not be required to maintain records showing employees’ reasons for use of their PTO, but still must maintain records that PTO was used and how much PTO was used. Also, the employer may track total employee hours worked, rather than hours worked in St. Paul. For salaried employees who regularly work in St. Paul, employers may retain records of such employees’ regular workweek hours provided that this data is the basis for calculating employees’ accrued ESST.
We recommend that employers with locations in Minneapolis or St. Paul review and revise policies, procedures and agreements which address paid time off to comply with these ordinances, update existing postings and employee handbooks to include required notification, and review and update timekeeping systems to comply with recordkeeping requirements.