Minnesota Legislative Update 2024, Part III: Entering The Homestretch—Legislators’ Time To Make It Or Break It –

In the homestretch of Minnesota’s 2024 legislative session,
tension has mounted in St. Paul as state House and Senate
committees scramble to secure enough votes to place their bills on
Governor Tim Walz’s desk for signature. With multiple bills in
play, legislators continue to engage in strategic omnibus bundling
to consolidate support. However, Senator Mitchell’s arrest
throws a curveball into the plans, jeopardizing the fragile
one-vote majority held by Senate Democrats as Republicans call for
her expulsion. With the possibility of a deadlock in the Senate,
legislators may not be able to rely on party lines to pass
bills.

Quick Hits

• Minnesota lawmakers are attempting to secure enough votes ahead
  of this year’s legislative session deadline to place numerous
  bills on the governor’s desk, many of which, if enacted, will
  affect employers.




• Bills address drug testing, earned sick and safe time, pay
  transparency in job postings, wage deductions for credit card
  charges for tipped employees, restrictive employment covenants in
  service contracts, and employee misclassification.




• Senate Democrats have a one-vote majority, so some legislation
  may be endangered due to Republican calls for expulsion of a
  Democratic senator who was charged with first-degree burglary.

In our April 16, 2024, legislative update article, we previewed two
omnibus bills which include provisions that, if enacted, will
affect Minnesota employers. Since then, the two omnibus bills have
seen a flurry of activity, including bundling of other bills to
ensure they land on Governor Tim Walz’s desk.

Omnibus Budget and Policy Bills

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

Status: As previously reported, the Minnesota Senate
and House conferred a conference committee to compromise on the
text of omnibus bill because the companion bills were not
identical. The conference committee reached an agreement on the
text of the bill and adopted a conference committee report on April
30, 2024. The conference committee will transmit its report to the
Senate for consideration. If the Senate adopts the report and
re-passes the omnibus bill, then the House gets to consider the
same.

Key Provisions to Watch

Changes to DATWA. This omnibus bill would modify the
Drug and Alcohol Testing in the Workplace Act (DATWA) by:

• defining “oral fluid test” and clarifying that saliva
  testing to detect drugs, alcohol, cannabis, or their metabolites
  does not require the services of a testing laboratory;




• allowing employers to use oral fluid testing procedures as an
  alternative to drug and alcohol or cannabis testing for job
  applicants; and




• allowing an employer to request or require an oral fluid drug,
  alcohol, or cannabis test and allowing an employee or job applicant
  to request a drug, alcohol, or cannabis test at no cost to the
  employee or applicant using a testing lab within forty-eight hours
  of a test result that is positive, inconclusive, or invalid to
  remain eligible for the position. Current rights, notice, and
  retest procedures would apply to such testing.

Salary ranges required in job postings. The omnibus
bill includes HF 3587 and SF 3725 which 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. An employer that does not plan to offer a salary range
for a position would be required to list a fixed pay rate.

Wage deductions for credit card charges modified. The
omnibus bill includes HF 4787 and SF 4709, which would require the full gratuity
included in a credit card or electronic payment to be paid in full
to the employee in the pay period when they received it. The
current law allows an employer to deduct part of the gratuity to
cover the charge from a credit card service company.

Restrictive employment covenants void in service
contracts. This omnibus includes HF 3456 and SF 3721, which would bar staffing agencies or
similar entities in Minnesota from restricting their employees from
directly working for their customers.

HF 5217 / SF 5266

Status: This omnibus bill and HF 4194 / SF 4158 merged with HF 5242 / SF 5284 to create one housing, labor, and
transportation budget bill package.

Key Provisions to Watch

Minnesota Earned Sick and Safe Time (ESST). This
omnibus bill would modify the ESST law by:

• providing rulemaking authority to the Minnesota Department of
  Labor and Industry’s commissioner to carry out the ESST
  law;




• providing remedies available as enforcement against employers
  that do not follow ESST requirements and setting damages as the
  full amount of ESST time not provided or allowed to be used, in
  addition to an amount equal to that amount as liquidated
  damages;




• removing certain ESST earning statement (pay stub)
  requirements;




• modifying notice requirements to employees regarding their use
  and accumulation of ESST;




• allowing employees 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




• allowing employees to use ESST in the same increment of time as
  they are paid; provided, however, an employer is not required to
  allow leave increments of less than fifteen minutes and cannot
  require employees to use ESST in increments over four hours.

Review of personnel records by employees. Also included
in this omnibus bill is a provision that would modify the
definition of “employer” to include employers that employ
one or more employees for purposes of review and access to
personnel records for private sector employees.

Misclassification of employees and construction
employees. The omnibus bill includes HF 4444 and SF 4483 which would amend misclassification
provisions; provide additional penalties and enforcement of
misclassification of employees and construction employees; and
establish a new multipart independent contractor test for building
construction and improvement services.

Senator’s Arrest Threatens DFL’s Slim Majority

Senator Nicole Mitchell, a member of the
Democratic–Farmer–Labor (DFL) Party who represents
Minnesota’s District 47, was charged with first-degree burglary
last week. Senator Mitchell allegedly broke into her
stepmother’s home to retrieve some of her late father’s
belongings. Senate Republicans filed an ethics complaint against
Senator Mitchell and called for her resignation or expulsion after
her arrest. Senator Mitchell has been removed from committee
assignments and caucus meetings while both a Senate and criminal
investigation play out. The Democrats hold a one-vote majority in
the Senate and need Senator Mitchell’s vote to successfully
pass proposed legislation without bipartisan support.

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