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Employee Communications: Minnesota

Employee Communications requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Mark Mathison, Gray Plant Mooty

Summary

  • Employers should pay special attention to preemployment communications, employment offers and other communications before and around the inception of the employment relationship. See Minnesota Access to Consumer Reports Act.
  • Minnesota law restricts an employer's use and disclosure of Social Security numbers (SSN). See Social Security Numbers.
  • Minnesota law requires individuals, but not corporations, LLCs or partnerships, who work as independent contractors in the building construction industry to obtain from the Department of Labor and Industry an Independent Contractor Exemption Certificate (ICEC). See Independent Contractor Exemption Certificate.
  • Offer letters should list any conditions to employment. See Conditions to Employment.
  • Minnesota employers are prohibited from fraudulently inducing any person to change location for employment. See Fraudulent Inducement.
  • Minnesota has special notice requirements that are necessary to make enforceable an employee's assignment of inventions to the employer. See Assignment of Inventions.
  • Minnesota requires employers to post certain notices in addition to those required by federal law. See Required Postings and Notices.
  • A wide variety of Minnesota laws require notice of various kinds to employees. See Required Postings and Notices.
  • Employee assistance files must be maintained separately from personnel files. See Employment Assistance Records.
  • The Minnesota Privacy of Communications Act (MPCA) is similar to the federal Electronic Communications Privacy Act and prohibits the interception of any wire, electronic or oral communication, with limited exceptions. See Surveillance and Monitoring.
  • Minnesota law requires nondiscrimination by public contractors. See Nondiscrimination Required by Contracts with Public Entities.
  • The Minnesota Employee-Right-to-Know Act (MERTKA) requires employers that use or manufacture hazardous substances to provide certain information and education to employees regarding the potential hazards and properties of such substances. See Employee-Right-to-Know Act.
  • The Workplace Accident and Injury Reduction Act (AWAIR) requires industrial employers whose workplaces are specifically designated by Minnesota law to have and implement written safety programs. See Workplace Accident and Injury Reduction Act.
  • Employers may not prohibit an employee from discussing his or her wages. See Discussion of Wages.
  • Employers generally may not make deductions from wages except as authorized by statute. See Deductions from Wages.
  • Minnesota law provides that any assignment by an employee of future wages to be earned more than 60 days from the date of assignment is void, with the exception of deductions allowable by law. See Assignment of Wages.
  • The Minnesota Child Labor Standards Act is similar to the federal child labor requirements in most respects, but contains certain additional restrictions, some of which are relevant to employee communications. See Child Labor.
  • Once an employee has been involuntarily terminated or has resigned, employers are barred from altering the method, timing or procedures for payment of commissions earned if the result is to delay or reduce the amount of payment. See Prohibition on Altering Commission Structure Post Termination.
  • Minnesota Retirement Law addresses mandatory retirement ages, dismissal and other forms of discrimination based on age. See Retirement.
  • Minnesota employers need to comply with communications requirements regarding an employee's continuation of benefits. See Continuation of Benefits.
  • With respect to employee job references, employers may protect themselves from liability by taking certain statutorily- prescribed actions. See Employment Reference Protection.
  • Minnesota employers can be liable for defamation claims of employees, including, to a limited extent, claims based on self-publication of job reference information. See Defamation.
  • Minnesota regulates the use of mobile devices while driving. See Use of Mobile Devices.
  • Localities including Minneapolis and St. Paul have requirements pertaining to employee communications. See Local Requirements.

Minnesota Access to Consumer Reports Act

Employers should pay special attention to preemployment communications, employment offers and other communications before and around the inception of the employment relationship.

Minnesota has enacted a statute regulating preemployment background checks, called the Minnesota Access to Consumer Reports Act (MACRA). See +Minn. Stat. § 13C.001 et seq. +Minn. Stat. § 13C.001 +Minn. Stat. § 13C.04. MACRA's requirements are very similar to those of the Federal Fair Credit Reporting Act (FCRA). See Preemployment Screening and Testing: Minnesota; +15 USCS § 1681 et seq. However, there are slight differences between the two laws.

While FCRA requires that an employee's authorization of a background check be provided on a form that consists solely of that authorization, Minnesota law requires that the employer include the authorization request with its employment application when an application is used. Employers can satisfy both statutes by including the authorization on a separate page that is included with the employer's application form. In addition, MACRA requires that the authorization form have a checkbox for the individual to check if he or she wants a copy of the background report.

A separate statute prohibits employers from requiring an employee or prospective employee to cover the cost of a background check. +Minn. Stat. § 181.645.

Social Security Numbers

Minnesota law restricts an employer's use and disclosure of Social Security numbers (SSN). +Minn. Stat. § 325E.59. Under this law, all persons and entities are prohibited from:

  • Including a number the person or entity knows to be an individual's SSN on any materials that are mailed to the individual unless federal or state law requires the SSN to be on the document to be mailed;
  • Publicly posting or displaying SSNs;
  • Printing an SSN on any card required to access products or services;
  • Requiring an individual to transmit an SSN over the Internet, unless the connection is secure or the SSN is encrypted;
  • Requiring an SSN to access a website without also requiring a password, personal identification number or other authentication device;
  • Assigning or using a number as the primary account identifier that is identical to or incorporates an individual's SSN; or
  • Selling SSNs obtained from individuals in the course of business.

The provision contains certain limited exceptions. For example, SSNs may still be used in applications and forms sent by mail, such as documents that are part of a benefits enrollment process.

If an employer wishes to use social security numbers in a manner inconsistent with this law, it must comply with certain procedures and notice requirements.

Independent Contractor Exemption Certificate

Minnesota law requires individuals, but not corporations, LLCs or partnerships, who work as independent contractors in the building construction industry to obtain from the Department of Labor and Industry an Independent Contractor Exemption Certificate (ICEC). +Minn. Stat. §181.723. For purposes of the state workers' compensation, unemployment insurance, wage and hour, occupational safety and health laws, and state and federal tax withholding, individuals doing residential and commercial construction work without an ICEC will be considered employees of the contractor for whom they are working. An ICEC permits individuals to work as independent contractors.

The ICEC is only required for independent contractor sole proprietorships who subcontract to perform work and receive compensation from another contractor in the construction industry.

ICEC certificate holders may work as either independent contractors or as employees. Whether a certificate holder is working as an employee or an independent contractor will depend on the conditions of the particular work relationship. To be an independent contractor, in addition to having an ICEC, the conditions of the work relationship must also meet a nine-factor test. See +Minn. Stat. §181.723, Subd. 6.

Conditions to Employment

Offer letters should list any conditions to employment such as:

  • Background checks;
  • Drug testing;
  • Preemployment physicals; and
  • Restrictive covenants.

Employers in Minnesota should be especially careful in their representations when making an employment offer to someone who must move or is not actively seeking a change of employment. Detrimental reliance on such representations by an applicant who moves or quits an existing job can form the basis of an implied contract. See Employment Offer: Minnesota.

Fraudulent Inducement

Minnesota employers are prohibited from inducing any person to change location for employment by knowingly using false representations, whether oral or written, concerning the:

  • Kind or character of work;
  • Compensation; or
  • Sanitary conditions.

In addition, employers are prohibited from failing to state the existence of a strike or lockout at the proposed place of employment.

Employers who use misrepresentations to induce an employee to relocate are guilty of a misdemeanor. The employee has a right of action for damages and may receive attorney fees. See +Minn. Stat. § 181.64; +Minn. Stat. § 181.65.

Assignment of Inventions

Minnesota law limits the extent to which employment agreements may require that an employee shall assign or offer any of the employee's rights in an invention to the employer. +Minn. Stat. § 181.78. If an employment agreement contains a provision requiring the employee to assign or offer rights in any invention to the employer, the employer must notify the employee in writing that the agreement does not apply to an invention for which no equipment, supplies, facility or trade secret information of the employer was used, and that was developed entirely on the employee's own time.

The same holds true for inventions that do not relate directly:

  • To the business of the employer;
  • To the employer's actual or demonstrably anticipated research or development; or
  • To any work performed by the employee for the employer. +Minn. Stat. § 181.78, Subd. 3.

Required Postings and Notices

Minnesota law requires employers to post the following posters:

These posters may be obtained from the Department of Labor and Industry's website. Local requirements may also apply. See Local Requirements.

Notice of Right to Reasons for Discharge

Regulations promulgated by the Minnesota Department of Labor and Industry require all employers to notify employees of their right to receive notice of the reason for their involuntary termination by posting summaries of applicable Minnesota law in a conspicuous place in the workplace. +Minn. R. 5200.0280; see +Minn. Stat. § 181.931 et seq. (§§ 181.931 to 181.935).

No Smoking Notice

Minnesota employers must adopt and enforce no-smoking rules as prescribed by the Minnesota Department of Health. +Minn. Stat. § 144.416. Enforcement may include posting No Smoking signs in appropriate conspicuous places on or just inside all outside entrances to a building where workers are employed.

Medical Information

The Minnesota Human Rights Act restricts the collection, maintenance and disclosure of employee medical information in much the same way as the federal Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA). Essentially, information must be:

  • Gathered on separate forms;
  • Maintained in separate medical information files; and
  • Treated as confidential. +Minn. Stat. §363A.20.

Minnesota law gives an employee the right to review his or her personnel record once every six months. +Minn. Stat. § 181.961. However, the statutory definition of personnel records does not include medical reports and records. +Minn. Stat. § 181.960, Subd. 4.

Searches

Minnesota has no statutes or cases that restrict an employer's ability to engage in workplace searches. However, Minnesota courts recognize a cause of action based on invasion of privacy. See Lake v. Wal-Mart Stores, Inc., +582 N.W.2d 231 (Minn. 1998). Therefore, employers are encouraged to disseminate written policies to employees stating that any property on business premises is subject to search at any time.

Notice that Lie Detector Test Is Voluntary

Minnesota law applicable to lie detector tests is more restrictive than the federal law in a variety of ways. As to its more restrictive aspects, Minnesota law governs. See Employee Discipline: Minnesota.

Among other things, Minnesota law is broader than the federal Polygraph Act, prohibiting all forms of employer-required honesty testing on employees. +Minn. Stat. § 181.75.

An employer may accede to an employee's request for a polygraph test, but must advise the employee that the test is voluntary. +Minn. Stat. § 181.75. Even when requested by the employee, the results may be given only to persons authorized by the employee to receive the results. +Minn. Stat. §181.76.

Minnesota law also prohibits any person, including anyone on behalf of the employer, from disclosing, except to the individual tested, that another person has taken a polygraph or other honesty test. +Minn. Stat. § 181.76.

Drug Testing Notices

Drug and alcohol testing are strictly regulated in Minnesota under the Minnesota Drug and Alcohol Testing in the Workplace Act (MDATWA). +Minn. Stat § 181.950 et seq. (§§181.950-181.957). While this statute does not require an employer to conduct drug and alcohol testing, those who choose to do so must comply with its terms.

The MDATWA is a comprehensive statute that contains basic restrictions on employer drug and alcohol testing. The employer must have a written testing policy in place that, at a minimum, contains the following information:

  • The employees or job applicants subject to testing under the policy;
  • The circumstances under which testing may be required;
  • The right of an employee or applicant to refuse to undergo testing and the consequences of refusal;
  • Any disciplinary or other adverse employment action that may be taken, based on a confirmatory test verifying a positive result on an initial screening test;
  • The right of an employee or applicant to explain a positive test result on a confirmatory test, or to request and pay for a confirmatory retest; and
  • Any other appeal procedures available.

If an initial screening test yields a positive result, a confirmatory test is required. If that test is also positive, the applicant or employee must be notified within three working days and given an opportunity to explain the positive test result and to request a confirmatory retest at his or her own expense. +Minn. Stat. § 181.953, Subd. 6 et seq.

One of the most significant limitations of the DATWA is that it prohibits an employer from firing an employee because of a first time positive drug test result, unless the employee has been given and refused the opportunity to complete a chemical dependency assessment and any recommended treatment program, or fails to successfully complete such a program.

Notice of Employer's Bankruptcy

Written notification of an employer's bankruptcy petition must be given to all persons offered jobs with the employer at the time the job offer is made. +Minn. Stat. § 181.93 Subd. 2.

Notice of Personnel Record Rights

Minnesota employers must inform, in writing, all new hires of their right to review personnel records. +Minn. Stat. § 181.9631. This law does not apply to employers with less than 20 employees or to public employers who are subject to the Minnesota Government Data Practices Act.

Food Processing Industry Notices

Employers in Minnesota who recruit employees to relocate to work in the food processing industry must provide those employees with a written disclosure of the terms and conditions of employment at the time of recruitment. The disclosure must be:

  • In English and Spanish;
  • Dated;
  • Signed by the employer and employee; and
  • Maintained by the employer for two years.

A copy must be provided immediately to the employee. See +Minn. Stat. § 181.635. Employee for purposes of the disclosure requirements are those who are not exempt under the Fair Labor Standards Act.

Personal Information Compromised by Security Breach

Minnesota law requires that businesses that own, maintain or license personal information data provide notice to affected individuals of any security breach by which personal information data is maintained. Minn. Stat. § 325E. Financial institutions and entities subject to federal privacy and security regulations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) are exempt from this requirement.

Personal information includes a person's first name or initial and last name, combined with one or more data elements. A data element can include:

  • A social security number;
  • Driver's license or Minnesota identification number; or
  • An account or credit card number, along with a code or password that would allow access to the accounts.

A security breach is any unauthorized taking of personal information that would compromise information security.

Notice to Employees of Plant Closure

Minnesota repealed its plant closing law in 2001, but the federal WARN Act continues to require employers, among other things, to provide notice of an impending employment loss in certain circumstances. In addition to the WARN requirements, an employer providing a WARN notice of a plant closing, substantial layoff or relocation of operations must report to the Commissioner of the Minnesota Department of Employment and Economic Development the names, addresses, and occupations of the employees who will be or have been terminated. +Minn. Stat. § 116L.976.

Employee Assistance Records

Employee assistance files must be maintained separately from personnel files. +Minn. Stat. § 181.980. Employee assistance services generally relate to diagnosis and treatment of employees' personal problems, including the following issues:

  • Medical;
  • Mental health;
  • Drug;
  • Alcohol;
  • Emotional;
  • Marital;
  • Familial;
  • Financial; and
  • Legal.

Employees are entitled to view these records free of charge upon providing a written request to the employee assistance provider. The records must be furnished within seven working days if they are located in Minnesota, or 14 working days if they are stored out of state.

Generally, neither information contained in these records, nor the fact that the employee is receiving these types of services, may be disclosed to a third person, including the employer, without the employee's prior written consent. Disclosure is permitted only when it is:

  • Required by state or federal law;
  • Ordered by a judge;
  • Needed within the normal course of providing the requested employee assistance service; or
  • Necessary to prevent physical harm or the commission of a crime.

Surveillance and Monitoring

The Minnesota Privacy of Communications Act (MPCA) is similar to the federal Electronic Communications Privacy Act and prohibits the interception of any wire, electronic or oral communication, except in the following circumstances that may apply in the workplace:

  • A party to a communication may record or otherwise intercept communication; and
  • Communications where one party has given prior consent. +Minn. Stat. § 626A.02.

Nondiscrimination Required by Contracts with Public Entities

Public contractors in Minnesota, in any contract for materials, supplies or construction, must agree not to:

  • Discriminate against employees, contractors, subcontractors, suppliers or vendors by reason of race, creed or color who are qualified to perform the work; or
  • Intimidate or prevent the employment of any person on the basis of race, creed or color.

All money due under the contract may be forfeited for a second or subsequent violation of the law. Violations of this nondiscrimination obligation are misdemeanors. +Minn. Stat. § 181.59.

Employee-Right-to-Know Act

The Minnesota Employee-Right-to-Know Act (MERTKA) requires employers that use or manufacture hazardous substances to provide certain information and education to employees regarding the potential hazards and properties of such substances. +Minn. Stat. § 182.653, Subd. 4(a) et seq. (Subds. 4(a)-4(f)); see also +Minn. R. 5206.0100 et seq. MERTKA is enforced in place of the federal Occupational Safety and Health Administration's (OSHA's) hazard communication standards. See +29 CFR § 1910.1200.

MERTKA provides that employees who may be routinely exposed to hazardous substances, infectious agents or harmful physical agents in their workplace must receive prescribed training, at the employer's expense, before their initial exposure to any such substance. The training must be repeated once every year.

An exception is made for technically qualified individuals, who need only be informed of the right-to-know training and allowed to take advantage of it if they choose. +Minn. Stat. § 182.651, Subd. 16; Minn. R. 5206.0300; +Minn. Stat. § 182.653, Subd. 4b(h).

In addition to the training, employers are required to keep data sheets for each hazardous substance or harmful physical agent available for employee review. +Minn. Stat. § 182.653, Subd. 4b(j); +Minn. Stat. § 182.653, Subd. 4c(h); +Minn. R. 5206.0800.

Failure to comply with MERTKA may result in civil or criminal penalties. The Minnesota Occupational Safety and Health Division may punish particularly egregious violations with its instance-by-instance citation policy, in which the failure to train each individual employee is treated as a separate violation.

Workplace Accident and Injury Reduction Act

The Workplace Accident and Injury Reduction Act (AWAIR) requires industrial employers whose workplaces are specifically designated by Minnesota law to have and implement written safety programs. Minn. R. 5208.1500; see also +Minn. Stat. § 182.653, Subd. 8. The program must describe the following:

  • How management personnel will implement and maintain the program;
  • The methods used to identify, analyze and control safety hazards in the workplace;
  • How the plan will be communicated to all affected employees;
  • How workplace accidents will be investigated, and corrective action implemented; and
  • How safe work practices and rules will be enforced.

Employers are also required to:

  • Conduct and document a review of the written safety program at least once a year; and
  • Document how compliance with the program procedures is achieved.

Citations may be issued for the failure to have and implement an AWAIR program. +Minn. Stat. § 182.66 et seq.

Discussion of Wages

The Minnesota Women's Economic Security Act has added Section 181.172 to the Minnesota Statutes, which prohibits an employer from preventing an employee from discussing or voluntarily disclosing his or her wages. Specifically, an employer may not require an employee to sign a waiver of the right as a condition of employment. In addition, an employer may not retaliate against an employee for disclosing or discussing his or her own wages.

Deductions from Wages

Employers generally may not make deductions from wages except as authorized by statute. +Minn. Stat. §177.24, Subd. 4. However, an employer may make the following deductions with an employee's written agreement:

  • Union dues;
  • Certain insurance premiums;
  • Group annuities;
  • Contributions to a credit union;
  • Contributions to a community chest fund or a local arts or science council;
  • Contributions to a Minnesota benefit association;
  • Contributions to a registered political action committee; and
  • Contributions to an employee stock purchase or savings plan.

+Minn. Stat. §181.06.

Additionally, an employer may deduct, without an agreement, up to $50 for certain uniform and equipment expenses, provided the deduction does not reduce the employee's pay below the minimum wage. +Minn. Stat. § 177.24, Subd. 4.

Employers may not deduct the cost of lost, stolen or damaged property, or any debt owed the employer, from an employee's wages unless the employee has authorized the deduction in writing after the loss has occurred or the debt has arisen. +Minn. Stat. § 181.79.

Assignment of Wages

Minnesota law provides that any assignment by an employee of future wages to be earned more than 60 days from the date of assignment is void, with the exception of deductions allowable by law. +Minn. Stat. § 181.06, Subd. 1.

However, this restriction does not apply to any assignment of wages or salary in excess of the first $1,500 per month, where the assignment is for less than five years. No assignment of future wages to be earned by a married person is valid without the written consent of the person's spouse. +Minn. Stat. § 181.07.

Child Labor

The Minnesota Child Labor Standards Act is similar to the federal child labor requirements in most respects, but contains certain additional restrictions, some of which are relevant to employee communications. See Child Labor: Federal.

The Minnesota act requires that any 14- or 15-year-old who wishes to work on school days during school hours must obtain an employment certificate from the school superintendent or other person designated by the state board of education. +Minn. Stat. § 181A.05, Subd. 1. In addition, the Minnesota act requires every employer to obtain proof of age for any minor employee or prospective employee by requiring the minor to submit the following:

  • An age certificate;
  • A copy of a birth certificate; or
  • A driver's license.

+Minn. Stat. § 181A.06.

Prohibition on Altering Commission Structure Post Termination

Once an employee has been involuntarily terminated or has resigned, employers are barred from altering the method, timing or procedures for payment of commissions earned if the result is to delay or reduce the amount of payment. +Minn. Stat. § 181.03. Employees may file court claims to enforce this provision.

Retirement

Minnesota Retirement Law addresses mandatory retirement ages, dismissal and other forms of discrimination based on age. +Minn. Stat. § 181.81. Although this statute purports to permit a mandatory retirement age of 70, such a mandatory retirement age would violate the MHRA and federal law for the majority of employers.

This statute requires that when an employer intends to terminate an employee who is 65 years of age or older, and earlier than age 70, on the ground that the employee no longer can meet the bona fide requirements for the job or position, the employer must give the employee 30 days' notice of that intention.

Continuation of Benefits

Continuation of Life Insurance Coverage

Employees participating in group life insurance benefits have the right to continue this coverage at their own expense in many circumstances, and employers must notify terminated or laid off employees of their rights to do so. +Minn. Stat. § 61A.092.

The notice must be in writing and sent by first-class mail to the employee's last known address immediately upon termination or layoff from employment. If the employer's group life insurance policy contains a provision permitting an employee to retain coverage upon termination or layoff from employment, by paying premiums directly to the insurer, this statute does not apply, provided the employer gives notice to the employee and his or her spouse of this right.

If an employer fails to provide appropriate notice to the employee, or fails to make payment to the insurer after receiving timely payment from the employee, and the employee's coverage is terminated as a result, the employer may be liable for the employee's coverage to the same extent as the insurer would be had the coverage remained in effect.

There is some question whether this notice provision is preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA). See Retirement Benefits: Federal.

Continuation of Medical Insurance Coverage

Minnesota law prohibits an employer from terminating or restricting group health insurance coverage of an employee, or the employee's dependents, because of the employee's absence due to total disability. +Minn. Stat. § 62A.148. An employee suffers a total disability if he or she is unable to perform the duties of his or her regular occupation within the first two years of disability; and, after the first two years, if the employee is unable to engage in any occupation for which he or she is or may reasonably become qualified. +Minn. Stat. § 62A.147.

Minnesota also requires employers to permit continuation of coverage for the employee's former spouse and dependent children in the event of divorce. +Minn. Stat. § 62A.21.

Minnesota law requires employers to notify fired or laid off employees of their right to continue health insurance coverage at their own expense. +Minn. Stat. § 62A.17. The notice must be in writing and sent by first-class mail to the employee's last known address within 10 days of the termination or lay off from employment.

There is a form of notice contained in the statute. +Minn. Stat. § 62A.17, Subd. 5. This notice generally must be coordinated with the federal health care continuation (COBRA) notice. If the employer's insurance policy is administered by a trust, the employer need not send notice to the employee, but must notify the trustee of the name and last known address of the affected employee within 30 days of the lay off or termination. As noted above, the employer must, in any event, comply with its federal COBRA continuation responsibilities.

The term laid off encompasses a reduction in hours to the point where the employee is no longer eligible for coverage under the group policy. Employees discharged for gross misconduct are not entitled to elect continuation of coverage.

If an employer fails to make payment to the insurer after receiving timely payment from the employee, and the employee's coverage is terminated as a result, the employer will be liable for the employee's coverage to the same extent the insurer would be if the coverage were still in effect.

Upon request by a terminated employee, or the employee's eligible former spouse or dependent child, a health carrier must provide instructions necessary to enable the employee, former spouse or dependent child to elect continuation of coverage. +Minn. Stat. § 62A.17 Subd. 1; +Minn. Stat. § 62A.21 Subd. 2a.

Employment Reference Protection

Minnesota law generally does not require employers to give employment references. However, Minnesota law mandates that former employers of psychotherapists disclose to prospective employers information relating to sexual exploitation. +Minn. Stat. § 604.202. Similarly, schools are required to release information on former employees who have had a violent or sexual contact with a student. +Minn. Stat. § 13.43 subd. 16.

To encourage employers to release information about former employees, Minnesota law provides qualified immunity to employers responding to a reference request in good faith while complying with specific statutory requirements. +Minn. Stat. § 181.967.

Employers may disclose the following:

  • Dates of employment;
  • Compensation history;
  • Job description;
  • Training provided by the employer;
  • Written information regarding acts of violence, theft, harassment or illegal conduct that resulted in disciplinary action or resignation, and the employee's written response, if any; and
  • With the written authorization of the employee, records relating to the following:
    • Written employee evaluations;
    • Written disciplinary warnings and actions which occurred during the five years before the date of the authorization; and
    • Written reasons for separation from employment.

In order to overcome the employer's immunity, the former employee must show that the employer acted with malicious intent, and disclosed information that it knew was false and defamatory.

Defamation

Employees frequently dispute the accuracy of negative comments in performance evaluations in circumstances where the employer has not availed itself of the statutory qualified immunity for references. In Minnesota, it is possible for disputed statements to give rise to defamation claims.

The elements of a claim for defamation are:

  • A false statement of fact;
  • That is communicated to someone other than the claimant; and
  • That causes harm to the claimant's reputation and lowers the claimant in the estimation of the community.

See Lewis v. Equitable Life Assurance Soc., +389 N.W.2d 876, 888 (Minn. 1986).

Although publication of the defamatory statement is an essential element to a defamation claim, in Minnesota this may be established if an employee is compelled to publish a defamatory statement about himself or herself to a third person, e.g., by having to repeat a defamatory statement to a prospective employer in explaining the reasons for his or her termination.

This so-called compelled self-publication doctrine puts employers in Minnesota at particular risk of potential defamation claims from negative statements in performance appraisals and elsewhere, even when the statements are shared with no one other than the employee.

Because truth is an absolute defense to a claim of defamation, employers should be cautious to make sure that statements of fact contained in performance reviews are verifiably accurate.

Use of Mobile Devices

Minnesota law prohibits using a wireless communications device, while driving, to:

  • Initiate, compose, send, retrieve or read an electronic message;
  • Engage in a cellular phone call, including:
    • Initiating a call;
    • Talking or listening; or
    • Participating in video calling; and
  • Access the following types of content stored on the device:
    • Video content;
    • Audio content;
    • Images;
    • Games; or
    • Software applications.

+Minn. Stat. § 169.475; +2019 Bill Text MN H.B. 50.

Wireless communications device means:

  • A cellular phone; or
  • A portable electronic device that is capable of receiving and transmitting data, including text messages and email, without an access line for service.

A wireless communications device does not include a device that is permanently affixed to the vehicle, or a global positioning system or navigation system when the system is used exclusively for navigation purposes.

+Minn. Stat. § 169.011; +2019 Bill Text MN H.B. 50.

Electronic message means a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices. An electronic message includes:

  • An email;
  • A text message;
  • An instant message;
  • A command or request to access a web page;
  • Other data that uses a commonly recognized electronic communications protocol;
  • A voicemail message;
  • A transmitted message;
  • Transmitted video content, including through video calling; and
  • Transmitted gaming data.

The following are excluded from the definition of electronic message:

  • Data transmitted between a motor vehicle and a wireless communications device located in the vehicle; and
  • Data transmitted by a two-way radio, citizens band radio or amateur radio used in accordance with Federal Communications Commission rules and regulations.

The prohibitions do not apply if the device is used:

  • Solely in a voice-activated or hands-free mode to initiate or participate in a cellular phone call or to initiate, compose, send or listen to an electronic message. (This exception does not apply to accessing non-navigation video content, engaging in video calling, engaging in live-streaming, accessing gaming data or reading electronic messages);
  • To view or operate a global positioning system (GPS) or navigation system in a manner that does not require the driver to type while the vehicle is in motion or a part of traffic, provided that the person does not hold the device with one or both hands;
  • To listen to audio-based content in a manner that does not require the driver to scroll or type while the vehicle is in motion or a part of traffic, provided that the person does not hold the device with one or both hands
  • To obtain emergency assistance to:
    • Report a traffic accident, medical emergency or serious traffic hazard; or
    • Prevent a crime about to be committed;
  • In the reasonable belief that a person's life or safety is in immediate danger; or
  • In an authorized emergency vehicle while in the performance of official duties.

The law defines voice-activated or hands-free mode as an attachment, accessory, wirelessly paired or tethered capability, application, wireless connection or built-in feature of a wireless communications device or a motor vehicle that allows the person to use verbal or single-touch commands to:

  • Activate or deactivate the device; and
  • Activate or deactivate a function or software application of the device.

Voice-activated or hands-free mode does not include typing or scrolling on a device.

The use of cellphones is banned for school bus drivers. In addition, the use of cell phones is banned for teen drivers during their permit and provisional license stages.

Violations may be subject to a fine of $225, plus the amount specified in the uniform fine schedule.

Local Requirements

Minneapolis Notice-Posting Requirements

Minneapolis requires notices and posters under its Minimum Wage and Sick and Safe Time Ordinances. See Other Leaves: Minnesota; Minimum Wage: Minnesota; Minneapolis, Minnesota Code of Ordinances Sec. 40.420.

The Minneapolis Department of Civil Rights, Labor Standards Enforcement Division has prepared a notice poster for use by employers, which informs employees of their rights under both ordinances. The notice poster must be posted in a conspicuous place at any workplace or job site where any employee works. The notice must be posted in any language spoken by more than five percent of the workforce, if published by the Department.

A covered employer has additional notice and confidentiality requirements under the Sick and Safe Time Ordinance.

Minneapolis Sick and Safe Time

Covered employers must comply with notice and confidentiality requirements under the Minneapolis Sick and Safe Time Ordinance. See Other Leaves: Minnesota.

An employer that provides an employee handbook must include in it a copy of the workplace poster or other notice of employees rights and remedies available under the ordinance.

In addition, the ordinance prohibits employers from disclosing health or medical information regarding an employee or an employee's family member or information pertaining to domestic abuse, sexual assault or stalking of an employee or an employee's family member, except:

  • With the employee's permission;
  • Under the order of a court or administrative agency; or
  • When otherwise required by federal or state law.

An employer should ensure that internal policies regarding attendance, absenteeism or discipline comply with the ordinance.

St. Paul Earned Sick and Safe Time

The St. Paul Earned Sick and Safe Time (ESST) Ordinance takes effect July 1, 2017, for employers with 24 or more employees, and January 1, 2018, for employers with fewer than 24 employees.

An employer must give notice to employees of their rights under the ordinance. Employer notification to employees must be likely to reach all employees, should enable employees to provide reasonable notice of their desire to use ESST and must be documented.

The notice must include the following:

  • An employee's entitlement to ESST;
  • When accrual starts;
  • When an employee may begin using ESST;
  • Rate at which an employee accrues ESST;
  • If applicable, that the employer frontloads ESST;
  • The amount of ESST;
  • How ESST carries over to the next year;
  • Notice requirements for using ESST;
  • If applicable, requirements for providing written documentation from a health care provider if ESST exceeds three days;
  • Employer's disciplinary policy for suspected abuse of ESST;
  • The terms of use guaranteed under the ordinance;
  • The prohibition on retaliation against employees who request or use ESST; and
  • The right to file a complaint or bring a civil action if ESST is denied or the employee is retaliated against for requesting or taking ESST.

An employer may comply with this requirement by conspicuously displaying a poster published by the Department of Human Rights and Equal Economic Opportunity (Department). The Department may require an employer to post a notice in any other languages that the employer's workforce speaks. St. Paul, Minnesota Code of Ordinances Sec. 233.07.

Employers that provide an employee handbook must also include notice of employees' rights in the handbook. An employer may also provide notice by regularly distributing a written ESST policy or notice to each employee personally, by regular mail or email, or through other means such as company newsletters, check stubs or the company intranet.

Upon an employee's request, the employer must also provide information about the employee's current amount of accrued and used ESST. The notice may be provided in writing or electronically. The employer may choose a reasonable system for providing this notification, including, but not limited to, listing information on each pay stub or developing an online system where employees can access their own information.

For more information on ESST requirements, please see Other Leaves: Minnesota.

Future Developments

St. Paul Minimum Wage Ordinance

The St. Paul Minimum Wage Ordinance contains notice-posting provisions. See Minimum Wage: Minnesota; St. Paul, Minnesota Code of Ordinances Sec. 224.08.

Specifically, an employer must provide notice on an annual basis that employees:

  • Are entitled payment of the minimum wage set by the ordinance; and
  • That each employee has the right to report a violation if:
    • Payment of the minimum wage is denied by the employer;
    • The employee is retaliated against for requested payment of the minimum wage; or
    • The employee is retaliated against for reporting a violation of the ordinance.

An employer may comply with the notice requirements by displaying a poster in a conspicuous and accessible place in each establishment where employees are employed. In addition, an employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under the ordinance.

The Department of Human Rights and Equal Economic Opportunity will create and make available a model notice for use by employers. The notice will be printed in English and any other languages as needed.

While the ordinance technically takes effect on December 14, 2018, the first minimum wage increase is scheduled for January 1, 2020.

There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.