In part one of this series, we reported on several legislative developments in Minnesota that could impact employers. Now the Minnesota Legislature has proposed more bills affecting the workplace. These bills could alter the standard for sexual harassment, preempt local wage and sick leave laws, prohibit discrimination against unemployed job applicants, change the definition of “wage theft,” and further gender equality legislation.

Sexual Harassment Standard: H.F. No. 10 and S.F. No. 2295

On March 21, 2019, the Minnesota House of Representatives passed an amended version of H.F. No. 10 by a vote of 113–10. As amended, the bill still seeks to revise the state’s discrimination statute to state that a plaintiff need not prove that sexual harassment was “severe or pervasive” for his or her claim to be actionable under the state’s sexual harassment law. The amended bill now includes further language regarding when conduct becomes actionable as sexual harassment. Specifically, the bill states that “[c]onduct or communication has the purpose or effect of creating an intimidating, hostile, or materially offensive environment when: (1) a reasonable person in similar circumstances to the plaintiff would find the environment intimidating, hostile, or materially offensive; and (2) the plaintiff found the environment intimidating, hostile, or materially offensive.” Additionally, the amended bill provides that “[t]he intimidating, hostile, or materially offensive environment must be determined based on the totality of the circumstances.” We will provide additional updates as the bill continues through the legislative cycle.

Adding to the growing list of legislation seeking to address the “severe and pervasive” sexual harassment standard, S.F. No. 2295 was introduced on March 11, 2019, in the Minnesota Senate. In contrast to bills seeking to remove the “severe or pervasive” standard for sexual harassment claims, S.F. No. 2295 aims to provide further statutory guidance on when conduct rises to the level of actionable sexual harassment.

S.F. No. 2295 begins with a description of legislative intent, noting “that courts should not be bound by prior federal case law holding that conduct does not rise to the level of actionable sexual harassment if the conduct described therein would be considered severe or pervasive in the state,” and then specifically rejects the holdings of several Eighth Circuit U.S. Court of Appeals decisions. The bill explains that harassing conduct or communication must “under the totality of the circumstances, be: (1) objectively and subjectively harassing; and (2) sufficiently severe or pervasive to alter the terms or conditions of an individual’s employment.” And the bill clarifies that “[s]evere or pervasive sexual harassment may arise from a single significant instance of harassing conduct or communication, or a series of instances or harassing conduct or communications.” Finally, the bill states that an employer “that knew or should have known of an employee’s sexual harassment must not be liable if the employer exercised reasonable care to prevent or promptly correct sexual harassment or the employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer.”

As drafted, S.F. No. 2295 has five Republican sponsors and is supported by the Minnesota Chamber of Commerce.

Minimum Wage and Sick Leave Preemption: S.F. No. 2321

With S.F. No. 2321, the Minnesota Senate is attempting to prohibit local governments from enacting or enforcing any law or ordinance requiring employers to pay an employee “a wage higher than the applicable state minimum wage rate provided in section 177.24” (Minnesota’s minimum wage statute). The bill would further forbid local governments from enacting or enforcing any law requiring an employer to provide either paid or unpaid leave time. Finally, the bill seeks to prevent local governments from passing or enforcing any law “regulating the hours or scheduling of work time that an employer provides to an employee” or “requiring an employer to provide an employee a particular benefit or terms of employment.” On March 13, 2019, the bill was referred to the Minnesota Senate’s Jobs and Economic Growth Finance and Policy Committee.

A similar preemption bill was vetoed by Minnesota’s former governor on May 30, 2017. Given the current makeup of the Minnesota House of Representatives and the recently elected governor, it is not expected that this bill will make it out of the house or be signed into law.

Unemployment Discrimination: S.F. No. 120

S.F. No. 120 would make it “unlawful for an employer to discriminate against an individual based on unemployment status by either: (1) refusing to consider or refusing to offer employment based on that status; or (2) directing or requesting an employment agency to take into account unemployment status when screening or referring applicants for employment.” The bill also would prohibit an employer, when advertising for positions, from “stating or suggesting that current employment is a job qualification,” that an application from an unemployed person would not be reviewed by the employer, or that only applications from presently employed persons would be considered.

No federal law currently prohibits employers from discriminating against the unemployed, but such legislation has been enacted in both Oregon and New Jersey. The Minnesota bill, currently sponsored by three state senate Democrats, has been referred to the Jobs and Economic Growth Finance and Policy Committee.

Wage Theft: S.F. No. 1816

As discussed in our last post, proposed bill H.F. No. 6 and its senate companion, S.F. No. 1933, seek to broadly define “wage theft” to include all situations where “an employer has failed to pay an employee all wages to which that employee is entitled.” And as we noted, critics argued that the bill’s definition of “wage theft” would presumably include situations where an underpayment was unintentional, which could, therefore, criminalize honest mistakes.

Though there have been no new developments concerning those bills since our last report, another bill concerning wage theft, S.F. No. 1816, has since been introduced. S.F. No. 1816 appears to be aimed at addressing the concerns raised by critics of H.F. No. 6. Specifically, S.F. No. 1816’s definition of “wage theft” requires an employer to have an “intent to defraud” for wage theft to occur. This likely seeks to eliminate critics’ concerns that, under H.F. No. 6’s definition of “wage theft,” employers would be penalized for inadvertent, unintentional shortages in payments to employees. S.F. No. 1816 also seeks to establish within the Minnesota Department of Labor and Industry a Labor Trafficking and Wage Theft Free Workplace Recognition Program. Employers could request to participate in the program to be recognized for having no violations under specific wage theft or labor trafficking statutes (Minnesota Statutes Sections 177.21 to 177.35 or 181.01 to 181.172) during the preceding three years.

S.F. No. 1816 is currently sponsored by five Republican senators and supported by the Minnesota Chamber of Commerce.

Equal Rights Amendment: H.F. No. 13 and H.F. No. 71

The Minnesota Equal Rights Amendment (H.F. No. 13) was passed by the Minnesota House of Representatives on March 7, 2019. The bill would add a section to the Minnesota Constitution providing for gender equality. A companion bill, S.F. No. 200, remains in committee in the state senate. Proponents argue the amendment would provide a constitutional basis for claims of gender-based violence, help courts create more realistic legal standards for sex discrimination in the workplace, and ensure that women work in safe workplaces and have reasonable accommodations during pregnancy. The bill is likely to face a more challenging review process in the state senate, where Republican legislators have expressed concerns that the amendment could have implications for abortion and questioned the use of the term “gender,” as opposed to “sex,” in the proposed amendment. If the Minnesota Senate also votes in favor of the Equal Rights Amendment, the question of whether to amend the Minnesota Constitution to add a section providing for gender equality will be put to a vote by the public on the 2020 general election ballot.

Two other bills (H.F. No. 71 and S.F. No. 208), which address the federal Equal Rights Amendment passed by Congress in 1972, are also being considered by the legislature. The proposed federal constitutional amendment is currently just one state shy of achieving the necessary support to be fully ratified, but a 1982 deadline imposed by Congress would potentially still need to be repealed or overruled. The Minnesota bill requests that Congress remove the deadline to allow for a sufficient number of other states to take action so that the amendment can be fully ratified and incorporated into the Constitution.