Women’s Economic Security Act Expands Employer Obligations

By Veena A. Iyer and Lisa M. Schmid, Nilan Johnson Lewis

 
On Mother’s Day 2014, Governor Mark Dayton signed the Women’s Economic Security Act (“WESA”) into law. Over the course of the legislative session, many nonprofits have likely focused on the benefits that WESA will provide to their clients. But now that the bill has become law, it is essential that nonprofits understand the new obligations that WESA will impose on them as employers.  
 
In many ways, WESA is the most sweeping piece of state employment legislation to be enacted in years. It affects a number of aspects of employment law, including anti-discrimination, leave, unemployment, and contracting provisions. The most significant aspects of WESA include:
 
  • Creates new protected class for familial status: WESA expands the Minnesota Human Rights Act (“MHRA”) by adding familial status as a new protected class. Familial status includes pregnancy, trying to secure legal custody of a child, or being a parent, guardian, or designee of a parent or a guardian with a child in one’s domicile. (This change is now in effect.)
  • Mandates certain pregnancy accommodations: At an employee’s request, an employer must provide a reasonable accommodation, including seating, more frequent restroom, food, and water breaks, limits on lifting over 20 pounds, and transfers to a less strenuous position, for conditions related to pregnancy, childbirth, or related health condition. Employers are also prohibited from retaliating against employees for requesting or obtaining a pregnancy-related accommodation. Employees may sue to enforce these rights, and if successful, they can recover their attorneys’ fees.  (This change is now in effect.)
  • Expands the definition of “employee” for various required leaves of absence: WESA changes the definition of employee for the purposes of state-required parental leave and sick leave.  Under the new definition, an employee must only have worked for the employer for twelve months before the leave request (instead of twelve consecutive months immediately preceding the request) and for at least half-time (based on an employer’s full-time equivalent position) for the twelve-month period immediately preceding the leave.  (These changes will be effective July 1, 2014.)   
  • Expands pregnancy and parenting leave: Covered employers—meaning employers with over 20 employees—must provide up to twelve weeks of unpaid leave to eligible employees for:  1) the birth or adoption of a child; or 2) prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions (for female employees). Employees may take the first type of leave within twelve months of the birth/after the child leaves the hospital. Additionally, employers will now be allowed to require employees to use their sick leave during parental leave, and the leave will also run concurrently with any FMLA leave.  (These changes will be effective July 1, 2014.)   
  • Further expands sick leave: WESA further expands upon the recently broadened sick leave law to allow an eligible employee at a covered employer—again, one with over 20 employees—to use sick leave to care for his or her sick or injured mother-in-law, father-in-law, or grandchild. WESA also allows employees to use employer-provided sick leave for “safety leave,” which is defined as leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking. The changes will not affect employers who do not provide sick leave.  (These changes will be effective July 1, 2014.)  
  • Expands protections and accommodations for nursing mothers: All employers must “provide a room or other location, in close proximity to the work area, other than a bathroom or toilet stall, that is shielded from view and free from intrusion and that includes access to an electrical outlet, where the employee can express her milk in privacy.” Employees may bring a civil action to enforce their breastfeeding rights, and they can recover their attorneys’ fees if successful, which may cause a spike in claims in this area.  However, WESA also states that employers that make a reasonable effort to comply with this provision will be held harmless. (These changes will be effective July 1, 2014.)  
  • Prohibits wage nondisclosure agreements: WESA prohibits employers from requiring nondisclosure of their wages as a condition of employment. WESA also requires employers to include notice of employee rights and remedies in this regard in any provided employee handbooks. WESA also allows employees to sue to enforce these rights, and prevailing plaintiffs can recover their attorneys’ fees. (These changes will be effective July 1, 2014.)  
  • Requires equal pay certificates for certain employers doing business with Minnesota: WESA prohibits the state or its agencies from executing a contract for more than $500,000 with certain businesses that have more than 40 full-time employees unless the business has obtained an equal pay certificate of compliance from the MDHR. Covered employers will have to apply for the certificate and may face audits after receipt of the certificate to ensure compliance.  (This portion of WESA will be effective August 1, 2014 and will apply to any solicitation made on or after that date.) 
  • Expands availability of unemployment insurance for victims of intimate violence: Generally, individuals who quit employment or who engage in misconduct are not eligible for unemployment insurance. The unemployment insurance statute already created exceptions to these provisions for individuals who had to quit work or who engaged in misconduct because they or their immediate family members were victims of domestic violence. WESA amends these provisions. First, it eliminates the requirement that individuals provide certain documentary evidence to prove domestic violence. Second, it expands the quit and misconduct exceptions to include individuals who had to quit employment or who engaged in misconduct because they or their immediate family members were victims of sexual assault or stalking.  (This portion of WESA will be effective October 5, 2014 and will apply to all determinations and appeal decisions issued on or after that date.) 

In light of the changes that will result from the enactment of WESA, we recommend that nonprofit employers take the following steps:
 
  • Review your handbooks and ensure their policies are up-to-date.  
  • Consider providing additional employee training to ensure compliance with the new mandates. 
  • For those nonprofits that do significant business with the state, review your pay practices to determine if you can obtain a pay equity certification of compliance.  
 
Veena A. Iyer and Lisa M. Schmid are attorneys who practice labor and employment law at Nilan Johnson Lewis.  They can be reached at viyer@nilanjohnson.com and lschmid@nilanjohnson.com.
 

 
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