Author Archives: Ellen Brinkman

Changes to Minnesota’s Sick or Injured Child Care Leave Law Effective August 1, 2013

On August 1, 2013, Minnesota’s law (Minn. Stat. § 181.9413) on sick or injured child care leave is changing.

Under the old law, employees could use personal sick leave for absences due to the illness or injury to the employee’s child.  Under the new law, employees may also use personal sick leave for illness or injury to the employee’s adult child, spouse, sibling, parent, grandparent, or step-parent (i.e., “other family members”).  Sick leave for these reasons may be taken for reasonable periods of time as the employee’s attendance with their child or other family member may be necessary.  The new law is called “Sick Leave Benefits; Care of Relatives.

The new law has limits.  First, the law applies to employers who have at least 21 employees at one site.  Second, employers are allowed to cap the number of hours of personal sick leave an employee uses for the illness or injury of other family members.  This cap, however, must be no less than 160 hours of personal sick leave to care for other family members in any 12-month period.  Third, the law only applies to employees who have been employed for at least 12 consecutive months on at least a half-time basis (as defined by the employer’s personnel policies or practices, or a collective bargaining agreement).

Keep in mind that this law does not require an employer to provide sick leave at all.  It only provides requirements if the employer chooses to provide sick leave benefits to employees.  Also, an employer cannot cap the use of personal sick leave used to care for an employee’s child.

Takeaway:  The new Care of Relatives statute broadens the scope of an employee’s use of personal sick leave.  Employers should review their policies on sick leave to determine if revisions are necessary.

Happy 20th Anniversary to the FMLA

February 6, 2013 marked twenty years since the Family and Medical Leave Act (“FMLA”) was signed into law.  The United States Department of Labor recently published the results of a survey that collected information and opinions about the FMLA from employers and employees across the country.  According to the DOL, the survey results were positive, and indicate that the FMLA “continues to make a positive impact on the lives of workers without imposing an undue burden upon employers.”

Specifically, the survey results indicate:

  • Nearly 60% of employees meet all criteria for eligibility and coverage under the FMLA.
  • 13% of employees reported taking a leave of absence for a FMLA reason within the last twelve months.
  • 24% of leaves taken under the FMLA are intermittent leaves.
  • 91% of employers reported that complying with the FMLA either has a positive effect or no noticeable effect on employee absenteeism, morale, or turnover.
  • 85% of employers reported that complying with the FMLA is easy, somewhat easy, or has no noticeable effect.

To read more about the results of the survey, click here.

Overnight Travel for Non-Exempt Employees

Does an employer have to pay a non-exempt employee for travel time if the travel keeps the employee away from home overnight?

It depends on when the travel occurs.  Federal regulations define “travel away from the home community” as “travel that keeps an employee away from home overnight.”  29 C.F.R. § 785.39.  This travel time counts as compensable hours worked when it occurs during an employee’s regular work hours on regular working days and during non-regular working days.  Thus, if an employee regularly works from 8:00 a.m. to 4:00 p.m., Monday through Friday, the employer must pay for travel away from home between the hours of 8:00 a.m. and 4:00 p.m. on any day of the week.

Employers do not have to pay for travel time away from home outside of regular working hours if the employee spends that time as a passenger on an airplane, train, bus, or the like, and does not perform any work.  However, employers are required to pay for travel time away from home and outside of regular working hours if the employee must drive a vehicle for that travel.

Takeaway:  Employers should be cognizant of when non-exempt employees are traveling for overnight travel to ensure that employees are paid correctly under the Fair Labor Standards Act (FLSA).  Employers should also keep in mind that employees must be paid if they perform work while traveling, regardless of the travel time rules.

Reinstatement Following FMLA Leave

If an employee goes on a leave of absence under the Family and Medical Leave Act (FMLA), does an employer have to reinstate the employee to the exact same position upon the employee’s return to work?  No, although in general, the employee must be reinstated to an “equivalent position.”

Upon returning from FMLA leave, employees are entitled to be returned either to their same position or to an “equivalent position.”  29 U.S.C. § 2614(a).  An “equivalent position” is defined as one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, prerequisites and status.  It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.  29 C.F.R. § 825.215.  Even if the employee has been replaced or his or her position was restructured to accommodate the employee’s FMLA absence, the employee has the right to reinstatement to an equivalent position.

This said, a reinstated employee is not entitled to any more rights or benefits than those to which the employee would have been entitled had the FMLA leave not occurred.  Additionally, there are some specific circumstances when an employer may deny reinstatement.  Layoffs and shift changes are two more common situations where an employer may legitimately deny reinstatement, depending on the facts involved.  If an employer denies reinstatement, the burden is on the employer to prove that an employee would not otherwise have been reinstated to his or her employment.   

Takeaway:     Any time an employee is returning from FMLA leave, there are several things that an employer must consider if the employer intends to reinstate an employee to a different position or deny reinstatement entirely.  The FMLA requirements regarding reinstatement can be complicated, thus, a careful review of these requirements is necessary to limit legal exposure.

Does Minnesota Law Give Employees the Right to Review Their Personnel Files?

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.