A few more pieces have been added to the jumble that is the new Minnesota Wage Theft Statute.
The requirements of this new law can be divided into three categories: (1) the written Wage Notice that must be provided; (2) the written Wage Statement to employees, and (3) the additional information that must be included in employee wage records to stay in compliance with state recordkeeping requirements.
The Wage Notice – New Employees
As we explained in our piece entitled New Employer Recordkeeping Requirements Now Set to Take Effect July 1st – Are You Ready?, Minnesota employers must now provide a “Wage Notice” to new employees at the beginning of their employment starting July 1, 2019. The Minnesota Department of Labor and Industry (MNDOLI) has now issued a sample employee notice form that can be used for this purpose.
Note that the law requires that “an employer . . . provide the employee any written changes to the information contained” in the required wage notice before the date the changes take effect.
The Wage Notice – Current Employees
MNDOLI has also issued a Q&A that reminds employers that they need not provide the Wage Notice to current employees but they consider it a best practice to do so. Moreover, the Q&A confirms that when the Wage Notice is provided to a current employee (because there is a change to the current employee’s conditions in regard to information covered by the Wage Notice), that first notice must include all of the items required to be provided to new employees in the Wage Notice.
In addition, the first written notice to current employees must include the text prepared by MNDOLI that informs employees they may request, by indicating on the form, that the written notice be provided in a particular language and, if requested, the employer must provide the written notice in the language requested.
The Q&A also explains that the Wage Notice requirements may not be met by issuance of an employee handbook or union contract since (a) those documents might not contain the specific information required for the individual employee; and (b) they do not contain the required language about the right to have the notice translated.
Employee Acknowledgement of the Wage Notice
The Wage Notice amendments require that new employees acknowledge receipt of the Wage Notice. Thereafter, if there are changes in the required information, written acknowledgements are not required but MDOLI again says that “it would be a good practice to do so.” Importantly, the statute makes clear that the subsequent Wage Notice must be provided “before the changes go into effect.”
For current employees, while the statute does not clearly provide that acknowledgement is required, the Q&A states that when an employer sends current employees the first written wage notice, “the written notice should be signed by employees acknowledging receipt.” Presumably, once the first complete written notice goes out to current employees, like with new employees, there is no need to acknowledge subsequent changes “although it would be a good practice to do so.”
The new legislation does not address whether the wage notice can be provided in electronic form (e.g., via email) and/or signed electronically. However, the Minnesota Electronic Transactions Act makes clear that “if a law requires a record to be in writing, an electronic record satisfies the law” and “if a law requires a signature, an electronic signature satisfies the law.”
The Wage Statement
The Minnesota Required Statement of Earnings Statute, section 181.032, was also amended to expand the information that must be provided on the “required statement of earnings” statement. This new information that must be provided includes “Rates of pay and basis thereof including whether the employees paid by the hour shift, day, week, salary, piece commission or other method, and the specific application of any additional rules” and “Allowances if any, claimed pursuant to permitted meals and lodgings.”
In regard to how the wage statement is to be provided:
- An employer who chooses to provide an earnings statement by electronic means must provide an employee access to an employer-owned computer during an employee’s regular working hours to review and print earning statements;
- An employer must provide earnings statements to an employee in writing, rather than by electronic means, if the employer has received at least 24 hours’ notice from an employee that the employee would like to receive earnings statements in written form, and
- Once an employer has received notice from an employee that the employee would like to receive earnings statements in written form, the employer must comply with that request on an ongoing basis.
Revisions to the Recordkeeping Requirements in the MFLSA
The third major component to the “Wage Theft” statutory amendments is the changes to the recordkeeping requirements of the Minnesota Fair Labor Standards Act (MFLSA).
By far the most challenging amendment to the recordkeeping requirements is the requirement that the employer recordkeeping requirements include a list of the personnel policies provided to the employee including (1) “the date the policies were given to the employee” and (2) “a brief description of the policies.”
How do employers record this information?
- If an employer obtains a “handbook acknowledgement” from employees each year (or each time the handbook is revised), an employer could update the acknowledgement to include a list of the policies that are included in the handbook (e.g. the table of contents).
- If policies are maintained in a separate place, then it is advisable to create an acknowledgment that includes a list of all of the policies (including a short description of each) and have employees acknowledge that they have received access to the policies.
In addition, unlike the amendments to the wage notice statute, there is nothing that limits the application of this provision to “new” employees (i.e., those hired after July 1, 2019). This likely means that in order to be in compliance with the statute, employers are required to add this information to employer-required records for all current employees as well as all new hires.
The effective date of this new law is just a few days away. Hopefully the new sample form and the Q&A will help you get ready.