United States: Triplets? Duluth Joins Twin Cities In Enacting Paid Sick And Safe Time Law

Last Updated: June 8 2018
Article by Shirley O. Lerner and Sebastian Chilco

After considerable fact-finding efforts and numerous amendments, Duluth, Minnesota enacted Minnesota's third paid sick and safe time law. Employers with Minnesota operations may not find three to be a magic number because—while parts of the new law are similar to those in Minneapolis and St. Paul—Duluth's law breaks from the pack on various issues. Fortunately, because the law will not take effect until January 1, 2020, employers have more time to determine whether and how Duluth's standards interact with existing policies and procedures. Below we answer the most common paid sick and safe time questions employers have when a new law is enacted, and note key differences between Duluth's law and those already in effect in the Twin Cities.

Covered Employers, Employees, and Family Members

The ordinance applies to private employers with five or more employees, regardless of whether employees work in Duluth. Unlike the law in St. Paul, an employer is not required to be physically located in the city.1 Contrary to Minneapolis, Duluth does not impose an unpaid leave requirement on "small" employers; an employer that is subject to the law must provide paid leave.

Employees are covered if they: (1) work in Duluth more than 50% of their working time in a 12‑month period; or (2) are based in Duluth, spend a substantial part of time working in Duluth, and do not spend more than 50% of work time in a 12‑month period in any other particular place. This standard is different from those in Minneapolis and St. Paul, where employees must perform at least 80 hours of work in a year in the jurisdiction. But like the Minneapolis and St. Paul laws, the Duluth ordinance applies to workers covered by a collective bargaining agreement. Further, Duluth's ordinance does not apply to independent contractors, student interns, seasonal employees, or individuals entitled to benefits under or otherwise covered by the federal Railroad Unemployment Insurance Act.

Employees can use leave for themselves or to care for or assist a family member, which includes an employee's child, grandchild, grandparent, parent or parent-in-law, sibling, spouse or domestic partner, as well as any other individual related by blood or whose close association with the employee is the equivalent of a family relationship. These family member definitions generally align with those in Minneapolis and St. Paul, though the level of relationship for certain individuals is spelled out in more detail in Duluth.

Accrual, Caps, and Carry-Over Requirements

If an employer has a substantially equivalent paid leave policy that provides an amount of paid leave that may be used for the same purposes and under the same conditions as earned sick and safe time that is sufficient to meet the law's accrual and carry-over requirements, it is not required to provide additional sick time. Otherwise, employees begin accruing leave when the law takes effect or when employment begins, whichever occurs later. Employees accrue one leave hour for every 50 hours worked, which is different from the 1-for-30-hours standard used in Minneapolis and St. Paul. Employees must be allowed to accrue up to 64 leave hours per year, though employers are only required to allow an employee to carry over 40 hours of leave into the following year. This differs from the 48-hour annual, and 80-hour overall, accrual caps applicable in the Twin Cities, which also contain no numerical cap on carry-over; instead, a de facto carry-over cap can be used if an employer imposes a lawful accrual cap.

Alternatively, in Duluth, employers can front load 40 leave hours each year, which eliminates the annual carry-over requirement. This front-loading standard is easier to meet than in Minneapolis and St. Paul, where 48 front-loaded hours are required during the first year, and 80 front-loaded hours each subsequent year. During the first year, the Duluth front load can occur following the initial 90 days of employment, but it must occur at the beginning of each subsequent year.

Permitted Uses

After 90 calendar days of employment, employees may use accrued leave for sick and safe time purposes. Covered sick time purposes include a mental or physical illness, injury, or health condition, medical diagnosis, care, or treatment of the same, and preventive medical care. Duluth's safe time purposes are not as defined as Minneapolis' and St. Paul's, simply providing that leave can be used for an absence due to domestic abuse, sexual assault, or stalking of an employee or family member to provide or receive assistance. Unlike Minneapolis' and St. Paul's ordinances, the Duluth law does not provide for absences related to public health emergencies or the closure of a place of business, place of care, or school. Employees can use up to 40 leave hours per year—which differs from the only-limit-is-available-leave standard in Minneapolis and St. Paul—in increments consistent with the current business or payroll practices if the increment is not more than four hours.

Employee Notice and Documentation Requirements

The Duluth ordinance does not discuss when employees must provide notice when leave is foreseeable or unforeseeable. Rather, it generally provides that leave must be provided upon an employee's request. When possible, the request must include the absence's expected duration. In addition, employees can be required to comply with usual and customary notice and procedural requirements for absences or for leave requests if they do not interfere with employees' leave rights. For absences of more than three consecutive days, an employer can require reasonable documentation that leave was taken for a covered purpose. However, unlike in Minneapolis (via FAQ) and St. Paul (ordinance), the law does not address whether employers can require employees to provide non-documentation verification that an absence was covered by the law.

Pay Rate Requirements

When employees use leave, they must be paid the same hourly rate they earn from employment; for hourly employees, this is their standard hourly rate, and for salaried employees it is an equivalent hourly rate. The law provides that employees are not entitled to lost commissions or tips when leave is used, but does not address other common pay issues like how to calculate the pay rate for employees who earn commissions, how employees with multiple jobs or pay rates are paid, or what is excluded when calculating an employee's paid sick pay rate. It does, however, address pay when construction industry employees work on private or public projects, by allowing employers to either pay the state prevailing wage or, for registered apprenticeships, a rate established in a registered apprenticeship agreement.

Prohibitions

A difference that stands out in the Duluth ordinance is its limited prohibitions. As enacted, the law forbids only requiring employees to find a replacement worker as a condition of using leave. Unlike the Minneapolis and St. Paul laws, the ordinance does not contain an express anti-interference or an anti-retaliation provision, though anti-retaliation protections are implied in the notice employers must provide employees.

Employer Notice and Record-Keeping Requirements

Duluth's general notice requirement is similar to St. Paul's. Employers must notify employees that they are entitled to earned sick and safe time, the amount thereof, and the terms of its use under the law. Additionally, employees must be informed that retaliation is prohibited and that they can file a written complaint with the city clerk if leave is denied or if they are retaliated against for requesting or using leave.

The law's record-keeping requirement mirrors the standards in Minneapolis and St. Paul. For three years, employers must keep records documenting hours worked, as well as leave accrued and used. As enacted, posting is neither required in Duluth, like in Minneapolis, nor an option for satisfying notice obligations, as in St. Paul.

Enforcement and Penalties

Employees in Duluth can file a private lawsuit for violations, which is not an option in Minneapolis, but is one in St. Paul; however, Duluth employees must exhaust administrative remedies before filing suit, which requires reporting a suspected violation to the city clerk within one year of the alleged conduct.

The Duluth ordinance provides that an administrative penalty payable to an employee can be assessed, but only if an employer violates the notice provision or fails to keep leave-related information confidential or unlawfully discloses such information. Moreover, the Duluth Code section cited in the law does not state what the monetary penalty is, so clarification from the city will be needed. The only other penalty the law references—a civil penalty up to twice the amount of lost wages—appears to be only available if the city files suit.

Damages available to an aggrieved employee include reinstatement and back pay, being awarded uncredited leave, payment for leave unlawfully withheld, and lost wages, along with injunctive and other equitable relief. As with civil penalties, reasonable attorneys' fees only appear available for city-instituted actions.

Key Takeaways and Next Steps

Employers have been provided ample lead time to comply with Duluth's new law; this should be a positive, as long as FAQ or regulations are not left to the last minute, forcing businesses to scramble to adjust policies and procedures. The primary issue for Minnesota employers that operate in Minneapolis and St. Paul will be whether one policy will be adopted to cover all three locations or whether a standalone Duluth policy is a better fit.

For multistate and nationwide employers, however, a lot can happen in a year-and-a-half. Throughout the country, paid sick and safe time laws are being considered at the state and local level, and it is expected that the subject of mandatory paid leave will be put before voters in certain states during the upcoming November elections. As the number of laws increase and unique standards are adopted, developing a practical, manageable, and uniform paid sick and safe time policy becomes a challenge.

The Duluth city clerk has created a webpage for the new law, where FAQ, resources, and tools will be published,2 so employers should monitor the page to keep apprised of developments.

Footnotes

1 It is possible Duluth will issue FAQ or rules that may impose such a jurisdictional requirement—particularly since a state trial court judge permanently enjoined Minneapolis from enforcing its law against non-resident employers. However, given Minneapolis has appealed the ruling, and the Duluth ordinance is a year-and-a-half away from taking effect, Duluth might instead see how the Minneapolis litigation turns out before taking a position on the issue.

http://www.duluthmn.gov/city-clerk/earned-sick-and-safe-time/.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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