With the current pandemic, employment issues are becoming more complicated. However, there still remain common employment issues that we see on a frequent basis unrelated to the pandemic. One of the most common employment issues is the misclassification of workers as independent contractors. The misclassification of workers as independent contractors has been a priority of governing agencies for several years. However, in Minnesota, since 2019, the stakes are even higher with the sweeping wage and hour “reform” laws. As part of these laws are increased penalties for wage theft. Employers in Minnesota should be extremely concerned about the potential of violating the wage theft laws, which have both civil and criminal consequences.
Another common issue is employers not understanding additional aspects of the wage and hour “reform laws.” As part of the sweeping laws passed in 2019 is that an employer must provide each employee with a written notice, at the start of their employment, regarding wages, etc. and keep a signed copy of the notice on file. In addition, the employer has to provide notice to the employee before any changes regarding wages, etc. prior to the change taking effect. The notice must be in English and the notice must include a statement, in multiple languages, that informs employees they may request the notice to be provided in another language. In addition, there are additional requirements in Minneapolis that place additional obligations on employers as part of the notice requirements.
Outdated or improper employment handbooks are another common issue. It is important that your employee handbooks are reviewed and updated, at a minimum, on a yearly basis. Furthermore, it is important that your employee handbook is reflective of the laws that apply to your business. For example, we review lots of employee handbooks that require a business to comply with the federal FMLA (Family Medical Leave Act) when the business has less than 50 employees. The Act, generally, only applies to businesses with 50 or more employees. However, if your employee handbook states that your business grants FMLA, you have now opted into a law that you should not have opted in to. If you wish to provide your employees medical leave, you can still do so, but it is advisable not to opt into laws that would not apply to your business had you not opted into them.
Finally, a common issue we see in employment handbooks is wording that changes the handbook to an employment contract. Generally, a handbook does not change the at-will nature of employment. However, if you have contractual language in the handbook, most likely, your employment handbook actually changed an at-will employee to a contracted employee.
Spangler and de Stefano, PLLP assists businesses with employment issues, including reviewing employment handbooks and advising on employment issues.
The material contained herein is for informational purposes only, and is not intended to create or constitute an attorney-client relationship between Spangler and de Stefano, PLLP and the reader. The information contained herein is not offered as legal advice and should not be construed as legal advice.
February 10, 2021