On May 11, 2014—Mother’s Day—Governor Mark Dayton signed into law the Women’s Economic Security Act (“WESA”). WESA is a major piece of legislation designed to improve working conditions for women through a variety of new protections for employees and new requirements for Minnesota employers. This legislation is a combination of different bills, and will have a significant impact on Minnesota businesses. Some of the key aspects of WESA are described below.
Parental and Pregnancy Leave
WESA amends Minnesota statute § 181.941, which applies to employers with at least 21 employees, to provide up to twelve weeks of unpaid leave for: (1) a biological or adoptive parent in conjunction with the birth or adoption of a child, or (2) a female employee for prenatal care, or incapacity due to pregnancy, childbirth or related health conditions. This section previously provided employees with six weeks of unpaid leave for the birth or adoption of a child, and did not contain a provisions providing for leave due to pregnancy-related conditions. The amendments take effect on July 1, 2014.1
Reasonable Accommodation Requirements for Pregnancy and Childbirth
WESA includes a new statute—Minnesota statute § 181.9414—establishing reasonable accommodation requirements for health conditions related to pregnancy or childbirth for employers with at least 21 employees. If an employee requests an accommodation upon the advice of her licensed healthcare provider or certified doula, the employer must provide a reasonable accommodation unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business. A pregnant employee is not, however, required to obtain the advice of her licensed health care provider or certified doula, nor can an employer claim undue hardship, for the following accommodations: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds. Upon a request for a reasonable accommodation, the employer and the employee must engage in an interactive process to determine the reasonable accommodation. Reasonable accommodations may include, but are not limited to, temporary transfer to a less strenuous or hazardous position, seating, frequent restroom breaks, and limits to heavy lifting. Employers are prohibited from retaliating against an employee for requesting or obtaining an accommodation. The reasonable accommodation requirements relating to pregnancy are effective immediately.
Minnesota Statute § 181.939 requires employers to provide nursing mothers with reasonable unpaid break time in order to express breast milk and to make reasonable efforts to provide a private area for nursing mothers. The amendments to this section now require employers to provide a private room, other than a bathroom or a toilet stall, that is “shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet.” Perhaps most significantly, the amended statute now explicitly prohibits retaliation against an employee for asserting rights under § 181.939. An employee may now bring a civil action to recover damages, including costs and attorney’s fees, based on a claim that the employer violated § 181.939 or retaliated against an employee for exercising rights under this section. The amendments to the Nursing Mothers statute take effect July 1, 2014.
Discrimination Based on Familial Status
Effective immediately, WESA expands the list of protected classes under the Minnesota Human Rights Act to include “familial status.” WESA defines “familial status” as “the condition of one or more minors being domiciled with (1) their parent or parents or the minor's legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.” The protections afforded against discrimination on the basis of family status also apply to any person who is pregnant or is in the process of securing legal custody of a minor.
Except when based on a bona fide occupational qualification an employer may not refuse to hire, discharge, or otherwise discriminate against a person with respect to the terms and conditions of employment based on that person’s familial status.
Wage Disclosure Protection
Effective July 1, 2014, WESA creates a new Minnesota Statute § 181.172 that prohibits an employer from: (1) preventing an employee from disclosing his or her wages as a condition of employment; (2) requiring an employee to sign a waiver or other document which purports to deny an employee the right to disclose the employee’s wages; and (3) from taking any adverse employment action against an employee for disclosing or discussing the employee’s own wages or another employee’s wages that have been disclosed voluntarily. The statute also prohibits retaliation and creates a private right of action for employees to sue. If the employer has an employee handbook, the handbook must include a notice to employees regarding their rights and remedies under this new statute.
Expansion of Sick Leave and Leave for Care of Relatives
WESA further expands the law allowing employees to use their personal sick leave benefits for the benefit of various family members. Specifically, the law now permits employees to use sick leave benefits to care for an ill or injured mother-in-law, father-in-law, or grandchild. Employees may also now use earned sick leave for “safety” leave, which includes providing or receiving assistance because of sexual assault, domestic abuse, or stalking. The amendments to Minnesota Statute § 181.9413 take effect July 1, 2014.
Equal Pay Certificates
The new law, Minnesota Statute § 363A.44, generally requires employers with 40 or more full-time employees to obtain an equal pay certificate from the state if the employer seeks a state contract in excess of $500,000. To obtain an equal pay certificate, the employer must pay a $150 filing fee and submit an equal pay compliance statement to the Commissioner of Human Rights certifying the following:
(1) that the business is in compliance with Title VII of the Civil Rights Act of 1964;
(2) that the average compensation for its female employees is not consistently below the average compensation for its male employees within each of the major job categories in the EEO-1 employee information report for which an employee is expected to perform work under the contract, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, or other mitigating factors;
(3) that the business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
(4) that wage and benefit disparities are corrected when identified to ensure with the laws cited in clause (1) and with clause (2); and
(5) how often wages and benefits are evaluated to ensure compliance with the laws cited in clause (1) and with clause (2).
The equal pay compliance statement must also indicate whether the business, in setting compensation and benefits, utilizes: (1) a market pricing approach; (2) state prevailing wage or union contract requirements; (3) a performance pay system; (4) an internal analysis; or (5) an alternative approach to determine what level of wages and benefits to pay employees. If the business uses an alternative approach, the business must provide a description of its approach. This law takes effect August 1, 2014.
Effective October 5, 2014, WESA expands eligibility for unemployment benefits to victims of stalking and sexual assault.
What Should Employers Do to Company with the Women’s Economic Security Act?
Minnesota employers should do the following to comply with WESA:
- Contact legal counsel to assist in updating employee handbooks and other policies regarding the following: (1) parental and pregnancy leave; (2) pregnancy accommodation; (3) harassment and discrimination (familial status); (4) wage disclosure; and (5) sick leave and care of relatives;
- Make reasonable efforts to provide a room or other location, other than a bathroom or toilet stall, that is private and offers access to an electrical outlet for nursing mothers to express breast milk. Employers should take care to avoid retaliating against employees exercising their rights as nursing mothers.
- Avoid discrimination based on “familial” status. Essentially, this means that employers cannot discriminate against pregnant women and parents with minor children at home. Employers should refrain from soliciting information regarding an employee’s familial status, whether in the hiring process or otherwise.
- Offer reasonable accommodations for health conditions relating to pregnancy or childbirth. Unless the employer can demonstrate an undue hardship on its business operating, the employer must allow a reasonable accommodation for an employee requesting such accommodation relating to pregnancy or childbirth. An employer cannot claim an undue hardship if the employee requests more frequent restroom, food, and water breaks; seating; and/or limits on lifting over 20 pounds. The employer also cannot require the pregnant employee to obtain the “advice” of a licensed health care provider or certified doula in order to request the aforementioned accommodations. Employers should avoid retaliating against employees requesting or obtaining a reasonable accommodation. Employer should contact legal counsel with questions regarding reasonable accommodations relating to pregnancy or childbirth.
- If an employer has or is seeking a state contract in excess of $500,000 the employer should obtain an equal pay certificate from the Commissioner of Human Rights.
Please contact Marnie DeWall or the Lindquist & Vennum employment attorney with whom you regularly work with any questions about the sweeping effects of the Women’s Economic Security Act or other workplace policies.
1 Since Governor Dayton signed WESA into law, there have been questions regarding the effective date of certain sections—specifically the sections regarding parenting/pregnancy leave, sick leave, nursing mother breaks, and wage disclosure protection, all of which are silent as to effective date. Pursuant to Minnesota Statute § 645.02, when an act does not specify an effective date, the act generally takes effect on August 1, with the exception of bills containing an item of appropriation, which take effect July 1. Because some sections of WESA contain certain appropriations, Lindquist & Vennum recommends that employers presume the sections that are silent as to effective date become effective July 1, 2014, and act accordingly.