Perspectives

Minnesota lawmakers have advanced a bill that would create a new state-backed family and medical leave program, which guarantees paid time off for the roughly 75% of MN workers that currently don’t already have access to the benefit. This new law aims to take some of the cost and risk associated with employee leave off of employers, but what does that mean for your business?

What would the new policy entail?

The law proposes providing up to 12 weeks of partial wage replacement for medical leave (including pregnancy). The law also proposes providing up to 12 weeks partial wage replacement for family leave, including for a new baby or seriously ill relative.

What would the benefits be?

The law would replace wages on a progressive scale at 90%-55% of an employer’s salary (66% on average), while protecting job healthcare benefits.

Who would foot the bill?

The cost for providing leave would be handled by creating a large statewide risk pool to attempt to equally share costs between employers and employees, with both contributing 0.31% on employee earnings.

Who is going to do the paperwork?

The Minnesota Department of Employment and Economic Development would handle payments and administration on behalf of employers.

Who will be entitled to this benefit?

All working Minnesotans, including small business owners and those who are self-employed would be eligible for leave. The leave would be job-protected, including a right to be reinstated after the completion of leave, and retaliation is prohibited.

Key Components of MN’s proposed family leave policy:

This proposed policy has NOT been passed by Minnesota law makers yet, so there is no need to make any changes to your employee policies at this time. The information here is not legal advice, and you should not take, or refrain from taking action based on information here. If you have additional questions about this policy, or would like to work with the WFJ Employment Law and Human Resources team to develop your internal policy now-visit our Support Services page to request a consultation, or give us a call!

What is a home seller disclosure law?

A home seller disclosure las is a law that requires home sellers to disclose or reveal known defects regarding the property that is being sold. Every state has their own unique disclosure laws and timelines. Many states also require a specific disclosure form, which should be provided by your Realtor.

What defects should be disclosed?

Material defects, anything that has an impact on the home’s value or safety. Water or flood damage (basement), leaking roof or ceiling, foundation cracks or issues, structural issues, insect infestations, mice infestations, toxic conditions such as asbestos, mold, lead paint, mechanical issues with the HVAC system or otherwise, electrical issues, deaths that occurred on the property in the recent few years, zoning issues or proposed changes to zoning, property line disputes-and depending on the state, naturally hazardous conditions such as location in a flood zone or near an earthquake fault line, tree roots impeding the plumbing lines, etc. The seller has a duty to report all defects they are aware of. If you can, paying for a detailed home inspection may help spot latent defects (defects not visible and not always detected by a general home inspection) and help you provide a comprehensive disclosure.

Does an issue have to be disclosed even if it was fixed by the homeowner?

Yes-disclose it in case the issue reappears for the buyer. Avoid a misrepresentation, negligence or fraud claim. Sometimes home issues that are repaired/fixed are perpetual problems. When in doubt, disclose.

What are your legal options if a problem wasn’t disclosed before you bought the home?

The buyer may have a claim against a seller when it can be proven that the seller knew about the defect and intentionally failed to disclose it. Typically this must be something that existed prior to the buyer taking possession of the home, a defect that is not obvious or visible to the buyer, and there is monetary damage resulting from the defect (buyer has out of pocket costs to fix or repair the issue.) The value of the claim is typically the cost to repair the defect. In some cases, there may be an attorney’s fees provision in the purchase contract.

What can a buyer do to make sure they aren’t buying a home with issues?

Pay for a thorough home inspection by a qualified professional that comes recommended to spot/reveal any issues. Read the entire disclosure form provided regarding the property, follow up with questions to the seller if you have any. Buying a home is a large investment, and you should take the time to understand what you are buying, and the contract you are signing-it is worth hiring a competent realtor or attorney to review the documents regarding the sale. Homeowner disputes can be lengthy and costly, so if you notice any red flags regarding the property, purchase agreement or disclosure, ask your realtor to ask the seller additional questions, and ask for them in writing.

In times of economic stress, there is too much money on the line to not review your large projects for red flags. Failing to act quickly when a customer is in distress could cause you to lose some of the remedies available to you-and can leave large sums of money left behind.

In our latest webinar, our employment attorneys reviewed the most recent changes to employment law in each of the 50 states. Here are some of the trends we noticed for 2023-

Hair Discrimination – Illinois: Illinois amended the state Human Rights Act. The Act prohibits employers from engaging in discrimination based on numerous protected characteristics, including race. This amendment expands the definition of “race” to include traits associated with race, including but not limited to hair texture and protective hairstyles such as braids, locks, and twists.

Wage Transparency – New York: New York City amends the city wage transparency provisions to clarify the positions for which a pay range must be provided. In addition to employers, 134-A specifies that employment agencies, and employees or agents thereof, must also include a salary range or hourly wage range in each advertised position, promotion, or transfer opportunity. Job advertisements for “temporary employment at temporary help firms” are still exempted from the law.

The new law also establishes a private right of action for employees. (Effective date to November 1, 2022.)

Rhode Island: Rhode Island prohibits wage discrimination; prohibits an employer from requesting or relying on an applicant’s wage history; requires an employer to provide a wage range for a position.

Washington: Requires employers to disclose hourly or salary compensation and a general description of benefits of postings for job openings.

Noncompete Limitations – Washington 2023 Non-Compete Enforceability Thresholds

Increases the amount an employee must earn to meet the non-compete enforceability threshold to account for inflation using the consumer price index.

Reproductive Health Decision-Making – Beginning January 1, 2023, California employers will be prohibited from discriminating against an applicant or an employee based on their reproductive health decision making— defined as “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

Employers will also be prohibited from requiring applicants or employees to disclose information relating to their reproductive health decision making.

Staying up to date on HR trends can help save your company headaches, hassle, and money in the long run. Follow Wagner, Falconer & Judd on LinkedIn to receive updates on ever-changing laws and regulations.

When does a school have a duty to do an initial evaluation to determine if a child is in need of special education services? Is your school district “dragging their feet” and not conducting an educational evaluation for your child?

All school districts have a child find duty under the Individuals with Disabilities Act (IDEA). The IDEA states that a state’s education agency, other state agencies, or local educational agency shall conduct a full and individual initial evaluation before providing special education and related services. This mandate applies to all children in a school district from birth through age 21.

Often we find that school districts will “discuss” with parents a child’s struggles, but there seems to be a lag in getting an evaluation done to determine a child’s potential need for services. If no evaluation is done, no services can be provided, so what is a parent to do to get the evaluation done? How can the school take so long to complete an evaluation when a child is struggling?

Minnesota Statute 3525.2550 states that a school must conduct an evaluation within a “reasonable time” not to exceed 30 school days from the date the district receives parental permission to conduct an initial evaluation. The IDEA section 1414 (c)(i) states that a district has 60 days, after receiving parental consent for an evaluation to determine if a child needs services.

How can these provisions work together? First, it is important to note the 60-day deadline under the IDEA is not limited to “school days”. Therefore, the school district has a duty to conduct evaluations even during the summer if the 60 days will end during the summer. Second, the Minnesota statutory 30 school days deadline applies when school is in session and shortens the 60-day federal rule. Collectively, the school has until the end of whichever deadline comes first to complete an initial evaluation after parental consent for an evaluation is provided.

So what is parental consent?

Parental consent can be as simple as a written letter to the school saying, “I think my child has need for services and I give you permission to evaluate my child.” If you simply call the school, chat with a teacher, etc. the school will argue that the deadline did not start because they don’t have written evaluation plan signed by a parent. yes, a written plan is better than blanket permission to evaluate a child, but it is not required under the law to start the clock running on the 60 and 30-day deadlines. You do not have to wait for the school district to develop a written plan, present it to you, and then get your approval. Send your approval right away! Some school districts seem to drag their feet and the time they have to evaluate a child by taking a long time to develop a plan for evaluation and failing to see parental consent on their plan. This is not acceptable.

In a recent Minnesota case (M.J.C. ex rel. Martin v. Special Sch. Dist. No.1, Minneapolis Pub. Sch., No. CIV. 10-4861 JRTTNL, 2012 WL1538339, at *8) the school district argued that it made a good faith effort to evaluate a child that was obstructed by the parent. However, the court held that the district failed to produce an evaluation plan in writing and that failure contributed to the child not being evaluated, thus causing the child find violation.

Legal issues are complex. Working with an attorney doesn’t need to be. When you bring your case to Wagner, Falconer & Judd, our dedicated on-boarding staff will explain your payment options to you. Based on the type of case you have, they will walk you through which payment option is right for you.

Retainer Fee: A retainer is a sum of money paid by the client to the attorney up front before the attorney will begin working on the client’s case. This money is placed in an account that the attorney will bill their time against as the case progresses. This is all explained in a written retainer agreement, which your attorney will explain to you before you sign. This will state how you will be charged and what will happen if your retainer fee is reduced to zero before the case is completed.

Flat Fee: A flat fee is a single amount paid by the client in return for a single legal service performed by the attorney. This is usually used for legal work that will not require ongoing representation. (One time events such as filing an LLC, or handling a real-estate agreement.)

Contingency Fee: A contingency fee is when a percentage of the “winnings” either awarded to the client by the court after a trial has occurred, and or paid to the client from the defendant via a settlement agreement. The attorney will not get paid unless the client wins the case. Typically, contingency fees are charged for a personal injury case, where a client is suing someone for a wrong against a client. Contingency fees are not allowed in certain kinds of proceedings, such as criminal defense or divorce representation. Attorney fees can not be contingent upon any specific outcomes in those types of proceedings.

If you have any questions about how your specific case is being billed, or to discuss your best options, reach out to our consulting team. They are always here to help.

On April 29, 2022, to thank Minnesotans who kept vital businesses running during the COVID-19 pandemic, Governor Tim Walz signed the Frontline Worker Payments law.  The law allows eligible workers in one of 15 different frontline sectors to apply to receive an estimated $750.00 payment.

These sectors include:

• 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, including production, processing, preparation, sale, and delivery;
• retail, including sales, fulfillment, distribution, and delivery;
• temporary shelters and hotels;
• building services, including maintenance, janitorial, and security;
• public transit;
• ground and air transportation services;
• manufacturing; and
• vocational rehabilitation.

Employers in one of the above-delineated frontline sectors must provide all current, potentially eligible workers with notice of the Frontline Worker Pay law by June 23, 2022.  The Minnesota Department of Labor has created a sample employer notice which can be found here.  The notice must be posted at each worksite where workers work and in a conspicuous place that can be easily accessed by all workers, such as a break room or in a location where other work-related notices are posted.  Notices can also be distributed in paper or electronic copies.

The Department of Labor has also created a helpful FAQ document which can be found here.