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Coming Soon: Minnesota Retirement Program

10.05.2023 Written by: Henningson & Snoxell, Ltd.

The Minnesota Secure Choice Retirement Program Act (the “Program”) establishes a retirement savings program available to state residents employed by covered employers (those with five or more employees who do not already have a retirement program in place). Under the Program, individual retirement accounts (IRAs) will be established for eligible employees to fund with a portion of their paycheck.

Program Features:

  • Participation in the Program is mandatory for employers that do not currently sponsor their own workforce retirement savings plan, such as a 401(k) plan, or those who have not sponsored one in the 12 months prior to the “Mandatory Implementation” date.
  • Employers are not required to contribute to their employees’ retirement plan.
  • “Covered Employees” include any employee of a covered employer who is at least 18 years old and satisfies any other criteria that may be established by the Program’s Board of Directors.
  • Employees can:
    • elect whether their contributions will be pre-tax or post-tax (Roth)
    • change their contribution rate
    • opt out of participation entirely
  • Employers must provide Program Information to all covered employees (the Program Information required has not yet been made available by the State).
  • Annual limits on contributions to an account under this Program will mirror the Federal IRA limits which are subject to annual adjustments. For 2023, these limits are $6,500 for individuals under the age of 50 and $7,500 for individuals over the age of 50.
  • The Program is set to begin on or after January 1, 2025. The Board of Directors will meet on March 1, 2024, to establish administrative procedures for the Program.

Program Governance: Board of Directors

The Program will be administered by a Board of Directors comprised of seven (7) members: the executive director of the Minnesota State Retirement System; the executive director of the State Board of Investment; three (3) members chosen by the Legislative Commission on Pensions and Retirement with retirement plan expertise; one (1) private-sector member (appointed by the Governor) with plan administration experience; and one (1) small business owner (appointed by the Governor).

Note to Employers:

This means additional requirements for you including, but not limited to, withholding contributions from payroll, remitting the withheld contributions to the program, ensuring all necessary information is provided to employees, etc. So, be sure to pay close attention when this Program becomes effective as civil penalties will be imposed for compliance failures.

We do our best to keep employers updated so that you can make informed decisions as you operate your business. For now, there is no requirement that you implement anything. But if you have any questions or concerns about this Program and what it may mean for your business, please feel free to reach out. A member of our team would be happy to guide you through this change.

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BEWARE: Scams after Forming Your Business

09.28.2023 Written by: Henningson & Snoxell, Ltd.

There has been a recent increase in scammers coming from nearly every direction. Most commonly, new business owners, especially owners of LLCs, are receiving official-looking notices or invoices after forming their new entity.

Here are the most common scams and what you need to know!

  • Appearing Official – Although the letters may look and seem official or quasi-governmental, they are not. Scammers try their best to make the letter as convincing as possible, but do not be fooled.
  • Labor Posters – The letters claim to provide labor law posters for an unnecessary fee, but the Department of Labor and Industry website provides free labor law/workplace posters. You can print them yourself or have them shipped to your business.
  • Certificate of Good Standing – Some letters claim to provide a copy of your business’s Certificate of Status for a fee. But the Secretary of State’s website offers a much lower cost of $5 for mail and in-person orders and $15 for online orders.
  • Annual Renewal – Letters claiming to submit your business’s Annual Renewal with the state for a fee should be disregarded because you can do so for free on the Secretary of State’s website.
  • Confidential Information – Requests for confidential information to update your business’s information or apply for a “state benefit” should be reported! Any confidential information related to your business, including officer names and addresses, bank account information, etc., should not be disclosed to anyone over the phone or in a letter.

When in doubt, do not respond. Contact us to verify that the fee or information request is valid.

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Ban on Captive Audiences

09.15.2023 Written by: Henningson & Snoxell, Ltd.

New legislation went into effect on August 1, 2023 that prohibits employers from discharging, disciplining, or otherwise penalizing employees who decline to attend or participate in employer-sponsored meetings, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters (“Captive Audience Meetings”). The law also protects employees who decline to receive or listen to employer-sponsored communications. Under the statute, retaliation, or the threat thereof, is prohibited as a means of inducing an employee to attend such meetings or receive such communications. And, under no circumstances may an employer take adverse action against an employee making a good-faith report of a violation or suspected violation of this statute.

The statute does not:

  1. Prohibit communication of information that the employer is required by law to communicate.
  2. Limit employers’ right to conduct meetings involving religious or political matters if attendance or listening is wholly voluntary.
  3. Limit employers’ right to communicate with employees or require the attendance of employees at meetings and other events that are necessary for employees to perform their lawfully required job duties.

Employers must post and keep posted a notice of employee rights, where employee notices are customarily posted if they have not already. Please contact us regarding our best practice recommendations for your workplace or with any questions regarding this new ban on captive audiences.

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Hiring and Testing New Employees

07.06.2023 Written by: Henningson & Snoxell, Ltd.

Minnesota has become the 23rd state to legalize recreational marijuana, which goes into effect on August 1, 2023. This means that adults (21 and older) may possess and use recreational marijuana anywhere in the state of Minnesota, except on federal property. As an employer, however, such use may have the same implications as the use of alcohol or other prescription drugs while on the job. Here is what you need to know when hiring and testing job applicants as of now.

Hiring

The use of recreational marijuana is illegal until August 1, 2023, so any test that comes back with a positive result for THC can still be subject to disciplinary action prior to that date.

After August 1, an employer may not:

  • Refuse to hire a job applicant based on an applicant’s use of cannabis products while off the employer’s premises during nonworking hours;
  • Request or require a job applicant to undergo testing solely for the purpose of determining the presence or absence thereof as a condition of employment;
  • Refuse to hire a job applicant solely based on a positive result for cannabis (unless required by state or federal law—for example, safety-sensitive positions);
  • Request or require a job applicant to undergo cannabis testing on an arbitrary or capricious basis; and
  • Withdraw an offer to a job applicant whose offer was contingent on passing a cannabis test, without a verification of a 2nd positive result from a confirmatory test (only for applicants of certain positions).

An employer may:

  • Request a cannabis test only after the employer has provided an appropriate form detailing the cannabis testing policy;
  • Request or require cannabis testing for a job applicant for certain positions.

An employer can request or require cannabis testing in three instances:

  • After an employer presents the employee or job applicant with a form detailing the cannabis testing policy—as with drug and alcohol testing policy requirements.
  • If the employee or job applicant is or will be working in one of the positions specified by statute (including but not limited to safety-sensitive positions, peace officer positions, and several others).
  • If an employer has reasonable suspicion that the employee:
    • Is under the influence of drugs or alcohol;
    • Violated the employer’s written work rules prohibiting such use;
    • Sustained a personal injury or has caused another employee to sustain a personal injury; or
    • Caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.

Where to Test?

Cannabis testing should be completed at a National Institute on Drug Abuse certified testing laboratory. However, Employers cannot conduct cannabis testing of their own employees or job applicants at a laboratory owned and operated by the employer.

What You Need to Do

  1. Update your written drug and alcohol testing policyby explicitly including cannabis in your drug and alcohol testing policy.
  2. Prepare a form detailing cannabis testing to share with job applicants and employees.

Please contact us on August 1, 2023, to update your drug and alcohol policies to include the necessary cannabis usage and testing language.

We will keep you informed as the Office of Cannabis Management continues to provide additional guidelines over the next year.

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Legalized Marijuana in the Workplace: What Do Employers Need to Know?

07.06.2023 Written by: Henningson & Snoxell, Ltd.

Legalized Marijuana in the Workplace: What Do Employers Need to Know?

Minnesota has become the 23rd State to legalize recreational marijuana, which goes into effect on August 1, 2023. With this change, employers have a few important steps to take to ensure safety in the workplace for their employees and their business. Here is what employers should know:

  • Recreational marijuana is still illegal until August 1, 2023; therefore, any use or possession can still be subject to disciplinary action.
  • After August 1, employers have some restrictions for prohibiting the use or possession of cannabis at work and when they can test for cannabis.

Prohibition on Use or Possession at Work

An employer cannot regulate an employee’s use and possession of recreational marijuana off work premises and during nonworking hours.

Employers can, however, regulate an employee’s use and possession during working hours, on work premises, or while operating an employer’s vehicle, machinery, or equipment.

Additionally, employers have no duty to permit or accommodate the use, possession, impairment, sale, or transfer of cannabis product (etc.) while an employee is working, on work premises, or operating an employer’s vehicle, machinery, or equipment.

Disciplinary Action Allowed

Employers may discipline, discharge, or take other adverse action against an employee for such use if:

  • As a result of consumption, the employee does not possess the clearness of intellect and control of self that the employee otherwise would have;
  • Cannabis testing verifies the presence of cannabis product (etc.) following a confirmatory test;
  • As provided in the employer’s written work rules for cannabis products (etc.), provided the rules are in writing and in a written policy containing the minimum information; or
  • As otherwise authorized or required under state or federal law, or if failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.

Employers may not discipline, discharge, discriminate against, or request rehabilitation of an employee:

  • Based on a positive result that has not been verified by a confirmatory test.
  • Based on a positive result from a confirmatory cannabis test unless:
    • Employer has first given the employee an opportunity to participate in a counseling or rehabilitation program; and
    • The employee either refused to participate or has failed to successfully complete the program (via withdrawal from program before completion or by positive confirmatory test after completion of program).

Employers may temporarily suspend or transfer an employee to another position (at the same rate of pay) pending the outcome of the confirmatory test, as long as the employer believes it is to be reasonably necessary to protect the health or safety of the employee, co-employees, or the public.

Cannabis Testing for Employees

An employer can test for cannabis when:

  • The employee works in a “safety-sensitive position.” Such positions are subject to Random Testing.
  • The employer has a reasonable suspicion that the employee:
  • Is under the influence of drugs or alcohol;
  • Has violated the employer’s written work rules prohibiting such use;
  • Sustained a personal injury or has caused another employee to sustain a personal injury; or
  • Caused a work-related accident or was operating or helping to operate machinery, equipment or vehicles involved in a work-related accident.
  • The employee has been referred by employer for substance use disorder treatment or evaluation.

An employer cannot test for cannabis on an arbitrary or capricious basis. In addition, employees have the right to request and receive a copy of the cannabis testing results from the employer.

What You Need to Do

  1. Update written drug and alcohol policies (usage and testing) to explicitly include cannabis language. This statute sets forth specific requirements for your written policy in order that it be compliant. Please contact our offices to ensure your policy reflects such language (some of which includes but is not limited to listing the employees or job applicants subject to testing under the policy, etc.)
  2. Prepare a form detailing the employer’s drug, alcohol, and cannabis testing policy and present it to the employees.

Please contact us before August 1, 2023, to update your drug and alcohol policies to include the necessary cannabis usage and testing language.

We will keep you informed as the Office of Cannabis Management continues to provide additional guidelines over the next year.

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How the New Amendments Are Protecting Employees

06.23.2023 Written by: Business Law Department

On July 1, 2023, in addition to the new noncompete legislation, two new amendments will go into effect that will impact employees and businesses. The amendment to the wage disclosure protection will prohibit employers from retaliating against an employee for asserting rights or remedies, and there will be an increase in protection for nursing mothers and employees. Continue reading our blog as we navigate the two new amendments going into effect this year.

Amendment to the Wage Disclosure Protection

Effective July 1, 2023, the Wage Disclosure Protection will prohibit employers from discharging, disciplining, penalizing, interfering with, threatening, restraining, coercing, retaliating, or discriminating against an employee for asserting his or her rights or remedies under the Wage Disclosure Protection.

The Wage Disclosure Protection was enacted in 2014 and amended in 2022. The previous language merely prohibited an employer from retaliating against an employee for asserting rights or remedies under the Protection. The July 1, 2023, amendment clarifies the types of retaliation prohibited under the statute. Contact us regarding these clarifications and what employers need to know.

Increased Protections for Nursing Mothers and Pregnant Employees

Also, effective July 1, 2023, the Minnesota Legislature passed several amendments to the Nursing Mothers and Pregnant Employee laws.

  1. No more 12-month limitation. There is no longer a 12-month limitation for employers to provide reasonable break times each day for lactation. This means that employers must allow nursing mothers and lactating employees breaks each day beyond the 12-month period.
  2. Concurrent with other breaks. Previously, such breaks were required to be taken concurrently with other breaks. However, the new amendment now merely allows for concurrent breaks but does not require the lactation breaks to run concurrently.
  3. Elimination of “unduly disrupts operations.” Employers are no longer allowed to deny nursing mothers and lactating employees a break if the break would ‘unduly disrupt operations.’
  4. Increased protections for pregnancy accommodations without health care provider’s advisement. The new amendment provides increased protections without requiring a licensed health care provider or certified doula for (a) more frequent and longer break periods; (b) a temporary leave of absence; and (c) modification in work schedule or job assignments.
  5. Notice to Employees. Employers are required to inform employees of their rights under this law at the time of hire and when the employee makes an inquiry about or requests parental leave. Notice shall also be provided in the employee handbook, if available, stating the employee rights and remedies. The Department of Labor will make available a suggested text to be included in the notice for employers.

Please contact us to update your employee handbook and answer any questions regarding the new amendment.

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No New Noncompetes

06.16.2023 Written by: Business Law Department

Warning to employers: A notable shift in employment law regarding the regulation of noncompete agreements has been passed by the Minnesota Legislature. Learn more about these changes and how they will affect your business moving forward.

No New Noncompetes: Effective July 1, 2023, any noncompete agreements agreed and entered into on or after July 1, 2023, will be considered void and unenforceable. This new law applies to non-profit organizations as well as for-profit businesses.

What Does it Mean?

  • The ban applies to all employees or independent contractors’ agreements, regardless of the person’s income, from working for another business after termination of employment, including:
    – for a specified period of time,
    – in a specified geographic area, or
    – for another employer in a capacity similar to the employee’s work for employer party to the agreement.
  • Noncompetes during employment are still valid.
  • The ban is not retroactive and will hold any noncompete provisions entered into before July 1, 2023, as valid and enforceable.
  • If the noncompete provision is rendered unenforceable, the remaining contract or agreement will still be valid and enforceable but without an enforceable noncompete provision.

What Can You Still Do?

  • Employers can still use noncompetes:
    – in the sale of a business, or
    – in anticipation of the dissolution of a business.
  • Employers can still use non-competes during the time of the employee’s employment.
  • Employees will still be subject to the following agreements:
    – Nondisclosure,
    – Confidentiality,
    – Trade secret, and
    – Non-solicitation.

Henningson & Snoxell Can Help

Please contact us with any questions or concerns regarding employee protections. We can utilize the tools mentioned above to protect your business and organizations.

In addition, please keep an eye out for more updates regarding the other new employment laws passed this session.

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FRONTLINE WORKER PAYMENTS: Immediate Impact on Employers

06.07.2022 Written by: Henningson & Snoxell, Ltd.

To thank those Minnesotans who worked on the frontlines during the COVID-19 peacetime emergency, Gov. Tim Walz signed Frontline Worker Payments into law April 29, 2022, enabling those workers to apply for Frontline Worker Pay. If you employed these workers, please pay close attention to the information below as it requires your immediate action.

Do your business or non-profit organizations fall under any of the following sectors?

  • Long-term care and home care
  • Health care
  • Emergency responders
  • Public health, social service, and regulatory service
  • Courts and corrections
  • Childcare
  • Schools, including charter schools, state schools, and higher education
  • Food service
  • Retail
  • Temporary shelters and hotels
  • Building services
  • Public transit
  • Ground and air transportation services
  • Manufacturing
  • Vocational rehabilitation

If so, you have a maximum of 15 days once the application period opens to provide notice in a form approved by the Commissioner of Minnesota’s Department of Labor and Industry. This application period opens on June 8th. The notice must tell all current workers who may be eligible for payments under this law about such payments and how to apply for them. A notice that meets this obligation has been posted at frontlinepay.mn.gov.

Note that this notice must be provided using the same means that you use to provide other work-related notices to employees. Additionally, the notice must be at least as conspicuous as posting a copy of the notice at each work site where workers work and where the notice may be readily observed and reviewed by all workers working at the site or providing a paper or electronic copy of the notice to all workers. In other words, it should either be visible to all workers or provided to each worker individually via email or paper copy,

If your employees have questions regarding the application process, direct them to frontlinepay.mn.gov.

If you are a current client of the firm, give us a call at 763-560-5700 if you have questions on any of the above information.

If you are new to the firm and have questions you would like us to address, please reach out to any of our business or nonprofit law attorneys.

Copyright © 2022 Henningson & Snoxell, Ltd. – All Rights Reserved.

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The Paycheck Protection Program and Religious Freedom Protections [Update]

04.03.2020 Written by: Henningson & Snoxell, Ltd.

Update to this post. Visit our COVID-19 resources page for more information.

Last night the SBA released its Interim Rule regarding the Paycheck Protection Program (PPP) that provided further guidance on religious freedom protections for religious corporations and the like.

According to Section 5 of the Interim Rule, “All loans guaranteed by the SBA pursuant to the CARES Act will be made consistent with constitutional, statutory, and regulatory protections for religious liberty, including the First Amendment to the Constitution, the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 and bb-3, and SBA regulation at 13 C.F.R. 113.3-1h, which provides: ‘Nothing in [SBA nondiscrimination regulations] shall apply to a religious corporation, association, educational institution or society with respect to the membership or the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its religious activities.’ SBA intends to promptly issue additional guidance with regard to religious liberty protections under this program.”

Although the SBA hasn’t issued its additional guidelines yet, it is highly likely they will be in alignment with the religious freedom protections afforded to churches and religious organizations under the First Amendment of the U.S. Constitution and the Religious Freedom Restoration Act.

Link to rule here.

For more information about these updated guidelines from the Department of Labor, or for guidance for your business, nonprofit or religious organization in light of these guidelines, please contact our Business and Nonprofit Organizations Team.

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    Copyright © Henningson & Snoxell, Ltd. - All Rights Reserved. This blog provides only very general, high level information about legal issues. Henningson & Snoxell, Ltd. is not providing legal advice through this blog, this blog is not an advertisement for legal services, and this blog does not create any attorney-client relationship between this firm and anyone, and this blog is not a solicitation for legal services. No reader should rely on this blog as a source of legal advice but rather should be advised by a local attorney. Henningson & Snoxell, Ltd. And its attorneys are licensed to practice law only in the State of Minnesota, USA. Persons interested in the subject matter of this message should consult their own attorney for any desired legal advice.