Minnesota Legislative Update 2024, Part II: Don’t Miss the Omnibus—Legislators’ Last Chance to Pass Employment Law Bills

Quick Hits

• Minnesota lawmakers are working on bills addressing drug testing, earned sick and safe time, pay transparency in job postings, restrictive employment covenants in service contracts, and unemployment benefits for striking workers.
• The legislative session adjourns on May 20, 2024.

In our March 27, 2024, legislative update article, several key bills were previewed, many of which have made it to an omnibus bills, along with other articles that may affect employers in Minnesota.

Omnibus Budget and Policy Bills

The Minnesota Senate and House have proposed multiple omnibus budget and policy bills. An omnibus bill is a large bill generally made up of numerous smaller bills on the same broad topic. Often the smaller bills are heard in committee and then laid over for possible inclusion in the omnibus bill rather than passing each bill separately.

Senate File (SF) 3852 / House File (HF) 3947

This omnibus bill includes sections that would modify the Drug and Alcohol Testing in the Workplace Act (DATWA) such as:

• defining “oral fluid test” and specifying saliva testing to detect drugs, alcohol, cannabis, or their metabolites does not require the services of a testing laboratory;
• permitting employers to use oral fluid testing procedures as an alternative to drug and alcohol or cannabis testing for job applicants; and
• requiring a job applicant to take a drug, alcohol, or cannabis test using a testing lab within forty-eight hours of a positive, inconclusive, or invalid test result to remain eligible for the job. Current rights, notice, and retest procedures would apply to such testing.

SF 3852 had its third reading and was passed to the House for reading and comparison to HF 3947. Once received by the House, the omnibus bill was amended and passed. However, the Senate did not concur with the House bill amendment and requested a conference committee be convened. On April 15, 2024, both House and Senate conference committees were convened to compromise on the language of the bill. If they reach a compromise, their agreement must be passed by both bodies before it can be sent to the governor.

HF 5217 / SF 5266

This omnibus bill includes an article related to earned sick and safe time (ESST) modifications. Most notably, the article includes sections that would:

• provide rulemaking authority to the commissioner of the Minnesota Department of Labor and Industry to carry out the purposes of the ESST law;
• provide remedies available as enforcement against an employer that does not follow the ESST law requirements and sets damages as the full amount of ESST time not provided or allowed to be used, plus an amount equal to that amount as liquidated damages;
• remove certain requirements related to ESST from being provided on employee earnings statements (pay stubs);
• modify the notice requirement to employees regarding their use and accumulation of ESST;
• allow an employee to use ESST for bereavement to arrange for or attend a funeral or memorial, or address financial or legal matters following the death of a family member; and
• allow ESST to be used in the same increment of time as an employee is paid. An employer would not be required to allow leave increments of less than fifteen minutes and would not be permitted to require an employee to use leave increments of over four hours.

Another notable section in this omnibus bill would modify the definition of “employer” for purposes of review and access to personnel records for private-sector employees. The bill would expand the definition to employers that employ one or more employees, rather than the current definition of twenty or more employees.

The companion bills were introduced on April 2, 2024. SF 5266 was re-referred to the Finance Committee after multiple amendments. HF 5217 currently sits with the Labor and Industry Finance and Policy Committee.

Statewide Earned Sick and Safe Time Amendments

The battle of the competing House of Representatives and Senate bills that would amend the ESST leave requirements continues.

HF 4462 / SF 5135

HF 4462 proposes several changes to ESST in favor of employers, such as allowing an employer to impose a ninety-day waiting period before an employee can use accrued ESST hours and excluding minors (under age eighteen), certain part-time employees, certain seasonal workers, and others from the definition of “employee.” Since our last article, HF 4462 gained a companion bill, SF 5135. The bills have made little progress though, and their status lingers at the first reading.

HF 3882 / SF 3787

HF 3882 and SF 3787 set out to clarify and reduce confusion left over from the rollout and implementation of the ESST, along with additional compliance measures, rulemaking, and remedies. SF 3787 was re-referred to the Labor Committee on April 8, 2024, and is awaiting its second reading and HF 3882 remains with the Labor and Industry Finance and Policy Committee on its second reading. However, most proposed amendments made their way to the HF 5217 / SF 5266 omnibus bill discussed above.

Changes to the Minnesota Human Rights Act (MHRA)

HF 4021 / SF 4292

HF 4021 and SF 4292 proposed to modify the MHRA by updating definitions such as “disability,” increasing procedural timelines from forty-five days to ninety days to bring a civil cause of action after dismissal or a no probable cause determination from a local commission, amending damage awards in civil actions by requiring the court to order a civil monetary penalty fine, compensatory damages, and an amount up to three times the actual damages sustained by an aggrieved party. Neither bill has made progress within their respective chambers since our previous legislative update. They do not appear to be included in any omnibus bill.

Salary Ranges Required in Job Postings

HF 3587 / SF 3725

HF 3587 and SF 3725 would require employers, of thirty or more employees, to disclose the “starting salary range, and a general description of all of the benefits and other compensation to be offered to a hired job applicant” in job postings. Since our previous article, both bills were laid over and are now included in the Omnibus Labor and Industry Policy Bill (HF 3947 / SF 3852).

Restrictive Employment Covenants in Service Contracts

HF 3456 / SF 3721

HF 3456 and SF 3721 proposed to bar staffing agencies or similar entities in Minnesota from restricting their employees from directly working for their customers. Neither bill has made progress within their respective chambers since our last update. Since our previous article, both bills were laid over and are now included in the Omnibus Labor and Industry Policy Bill (HF 3947 / SF 3852).

Unemployment for Striking Workers

HF 3446 / SF 3588

HF 3446 and SF 3588 proposed to amend Minn. Stat. § 268.085, subd. 13b, so striking workers would not be automatically ineligible for unemployment benefits during a labor dispute. Since our last update, both bills were laid over for possible inclusion in the omnibus bill in their respective chambers. They do not appear to be included in any omnibus bill.

Ogletree Deakins’ Minneapolis office will continue to monitor developments and will publish updates on the Minnesota blog as additional information becomes available.

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