Category Archives: Recordkeeping
Private employers in Minnesota need to be familiar with personnel record statutes and employee privacy rights. The Minnesota Government Data Practices Act, a wholly separate and much more demanding set of employee privacy laws that apply to public employers and public employees, is irrelevant to private employers – for the most part.
An exception is for corporations or non-profit organizations under contract with a government entity when following the Data Practices Act is required by the contract. See Minn. Stat. § 13.05, Subd. 11; see also Minn. Stat. § 13.02, Subd. 11. By virtue of contracting with the governmental entity (state, county, or a municipality), a private employer may need to respond to certain employee or public personnel data requests based upon the classifications and processes provided in the Data Practices Act. Typically, the Data Practices Act governs data on individuals (including personnel data) made available to the private employer through the government contract. Determining whether, how, and to what extent the Data Practices Act may apply to personnel data related to a government contract is a process of careful contract drafting and legal analysis.
Takeaway: A private employer with a government contract needs to keep in mind possible state Data Practice implications in responding to third party or employee requests for certain contract-related personnel data. This is an important point in contract drafting, and legal review should be involved to determine whether this unique requirement of the Minnesota Data Practices Act may apply to a private employer.
Minnesota law states that employers must provide each employee with an earnings statement at the end of each pay period. Minn. Stat. § 181.032. The earnings statement must include the following information:
- The name of the employee;
- The hourly rate of pay (if applicable);
- The total number of hours worked by the employee (unless the employee is exempt under the Minnesota Fair Labor Standards Act);
- The total amount of gross pay earned by the employee during that period;
- A list of deductions made from the employee’s pay;
- The net amount of pay after all deductions are made;
- The date on which the pay period ends; and
- The legal name of the employer and the operating name of the employer if different from the legal name.
The employer may provide the earnings statement either in writing or electronic form. If the employer chooses to provide the earnings statement in electronic form, the employer must provide the employee with access to an employer-owned computer during the employee’s regular working hours to review and print the earnings statement. Furthermore, if the employee requests that she receive her earnings statements in written form, the employer must comply with that request on an ongoing basis.
Takeaway: Employers should make sure that their earnings statements include all of the information required under Minnesota law.
The annual EEO-1 Report filing deadline is quickly approaching. The EEO-1 Report is a compliance survey report mandated by federal statute and regulations. It requires employers to categorize employment data by race/ethnicity, gender and job category and file a report with the United States Equal Employment Opportunity Commission (EEOC). Most private employers who have 100 or more employees must file this report, along with private employers with fewer than 100 employees if the company is affiliated with another company and the entire enterprise employs a total of 100 or more employees. Additionally, most federal government prime contractors or first-tier subcontractors with 50 or more employees and a contract worth $50,000 or more must also file the EEO-1 Report. The filing deadline for the EEO-1 Report is September 30th.
Remember that is important to correctly answer the question on the EEO-1 Report about whether the employer is a federal government contractor. Incorrectly answering this question may lead to an audit by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) of the employer’s affirmative action program.
Takeaway: Employers should take care to not only file the EEO-1 Report in a timely fashion, but to also carefully complete the Report so that it is accurate. Inaccurate or incomplete reports may lead to further investigation by the EEOC or the OFCCP, which employers would be wise to avoid if possible. More information about the EEO-1 filing requirements may be found on the EEOC’s website at www.eeoc.gov/employers/eeo1survey.
Private employers with 100 or more employees are required each year to file an EEO-1 report with the Equal Employment Opportunity Commission’s Joint Reporting Committee. 29 C.F.R. § 1602.07. Related entities that constitute a single enterprise who together employ at least 100 employees are also required to file. Generally, the form requires employers to provide summary data as to the gender and race of their workforce in ten broad job categories.
In addition to companies with 100 or more employees, all federal contractors or first-tier subcontractors with 50 or more employees and a single government contract of $50,000.00 or more are also required to file an EEO-1 report. These are the same threshold number of employees and contract amount that triggers a contractor’s or subcontractor’s obligation to develop an affirmative action plan. 41 C.F.R. § 60-2.1.
Section C of the EEO-1 report form inquires as to whether an employer is such a government contractor or subcontractor in its question 3. Employers who are contractors at these thresholds should answer the question by checking the “yes” box. Many times, however, employers who are not government contractors or who do not meet these thresholds rush completion of the EEO-1 form and inaccurately answer this question in the affirmative. Doing so tells the federal government that the company is a government contractor subject to affirmative action plan requirements. It should not then be a surprise if the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) notifies the company that it is scheduling an audit of the company’s affirmative action program.
Takeaway: To avoid miscommunicating government contractor status, employers should carefully complete the annual EEO-1 report.
Minnesota law provides protection to employers who disclose certain types of information in response to requests for employment references. If an employer stays within the confines of the statute, a current or former employee must make a heightened evidentiary showing to prevail on a lawsuit against the employer related to the disclosure.
The types of information that employers can generally disclose under Minnesota’s employment reference law without an employee’s authorization are:
- Dates of employment;
- Compensation and wage history;
- Job description and duties;
- Training and education provided by the employer; and
- Acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee’s written response, if any, contained in the employee’s personnel record. (Note: For this type of disclosure to qualify for protection under the statute, the disclosure must be in writing with a copy sent contemporaneously by regular mail to the employee’s last known address).
If the employer has a written authorization from the employee, the employer may also disclose the following types of information about the employee:
- Written employee evaluations conducted before the employee’s separation from the employer, and the employee’s written response, if any, contained in the employee’s personnel record;
- Written disciplinary warnings and actions in the five years before the date of the authorization, and the employee’s written response, if any, contained in the employee’s personnel record; and
- Written reasons for separation from employment.
With limited exceptions, in order to maintain a cause of action against an employer for disclosure of the above-listed information, a current or former employee must be able to prove by clear and convincing evidence that: (i) the information was false and defamatory; and (2) the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.
Takeaway: Employers can minimize potential liability for employment references by limiting their disclosures to include only the information that is authorized under the statute.
Minnesota law gives employees a right to review their personnel records periodically. In some circumstances, the contents of an employee’s “personnel record” may not necessarily be consistent with what an employer keeps in the employee’s personnel file.
Under Minnesota law, “personnel record” is defined to include the following types of information:
- Any application for employment;
- Wage or salary history;
- Notices of commendation, warning, discipline, or termination;
- Authorizations for a deduction or withholding of pay;
- Fringe benefit information;
- Leave records; and
- Employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement record.
But the following types of information do not need to be included in an employee’s personnel record:
- Written references respecting the employee, including letters of reference supplied to an employer by another person;
- Information relating to the investigation of a violation of a criminal or civil statute by an employee or an investigation of employee conduct for which the employer may be liable, unless and until: (i) the investigation is completed and, in cases of an alleged criminal violation, the employer has received notice from the prosecutor that no action will be taken or all criminal proceedings and appeals have been exhausted; and (ii) the employer takes adverse personnel action based on the information contained in the investigation records;
- Education records that are maintained by an educational institution and directly related to a student;
- Results of employer testing, except that the employee may see a cumulative total test score for a section of the test or for the entire test;
- Information relating to the employer’s salary system and staff planning, including comments, judgments, recommendations, or ratings concerning expansion, downsizing, reorganization, job restructuring, future compensation plans, promotion plans, and job assignments;
- Written comments or data of a personal nature about a person other than the employee, if disclosure of the information would constitute an intrusion upon the other person’s privacy;
- Written comments or data kept by the employee’s supervisor or an executive, administrative, or professional employee, provided the written comments or data are kept in the sole possession of the author of the record;
- Privileged information or information that is not discoverable in a workers’ compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding;
- Any portion of a written or transcribed statement by a coworker of the employee that concerns the job performance or job-related misconduct of the employee that discloses the identity of the coworker by name, inference, or otherwise; and
- Medical reports and records, including reports and records that are available to the employee from a health care services provider pursuant to the Minnesota Health Records Act.
Takeaway: Employers in Minnesota should include all necessary information in an employee’s “personnel record” and exclude any information that the statute says does not need to be included. Because employees have the right to review their personnel records periodically, what information is included or excluded from the personnel record can have important consequences in some situations.
Yes. Minnesota Statute § 181.961 discusses when current and separated employees have the right to review their personnel files, and what an employee must do to review his or her file.
A current employee may review his or her personnel file after providing a written request to the employer. The employer must comply with this request within 7 working days if the personnel file is located in Minnesota, or within 14 working days if it is located out of state. The employer must make the personnel file (or a copy of the file) available for the employee to review during the employer’s normal hours of operation, at the employee’s place of employment or other reasonably nearby location. The employer may require the employee to review the file in the presence of the employer. The employer must provide a free copy of the file to the employee if the employee submits a written request for a copy. A current employee may not review his or her personnel file more than once every six months.
A separated employee may review his or her personnel file once each year after separation, for as long as the file is maintained. The separated employee must provide a written request to review the personnel file. The employer can satisfy the statute by providing a free copy to the separated employee within the same time requirements mentioned above.