Hailed by supporters as a necessary step towards increased economic equality, the Women’s Economic Security Act (“WESA”) became law in Minnesota on May 1, 2014.  WESA passed the Minnesota House and Senate with broad bipartisan support, and many believe that the statute will level the playing field for female employees across Minnesota.  Nonetheless, as with any law that expands employee rights, WESA also imposes additional obligations on companies that employ individuals within the state.  As a result, it is important for employers to understand the specific rights that WESA creates, as well as the steps that they must take in order to comply with the new law.  

  1. What the Women’s Economic Security Act Does.

WESA is a nine-part law meant to provide additional protections for Minnesota employees.  Of direct interest to employers, WESA protects employee discussions regarding wages; protects employees from discrimination based on “familial status”; requires employers to provide certain accommodations to pregnant women and nursing mothers; expands new parent leave; expands sick leave; and requires state government contractors to certify that they are complying with equal pay laws. 

  1. Creates an employee right to disclose wages.

WESA allows employees to disclose their wages to other employees.  Specifically, pursuant to Minnesota Statute § 181.172, employers may no longer (1) make the non-disclosure of wages a condition of employment; (2) require employees to sign an agreement that has the effect of waiving the employees’ right to disclose their wages; or (3) take adverse employment action against employees who do disclose their wages, or who discuss another employee’s wages that were voluntarily disclosed.  Moreover, employers must also provide formal notice of its employees’ rights and remedies under the new law. 

Employers who violate this provision, or who retaliate against employees for asserting their rights under this provision, may be subject to a civil lawsuit.  Under those circumstances, an employer may be liable for an employee’s actual damages, court costs, attorneys’ fees, back pay, and more.  Section 181.172 will become effective on July 1, 2014. 

  1. Adds a protected class to the Minnesota Human Rights Act.

WESA also expands the Minnesota Human Rights Act (“MHRA”) by prohibiting employment discrimination based on an employee’s “familial status.”  Familial status is the “condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.”  The familial status protection also applies to “any person who is pregnant or is in the process of securing legal custody of an individual who has not attained the age of majority.”  This provision is effective immediately, and it applies to all Minnesota employers.

  1. Requires the accommodation of pregnant employees and new parents.

Employers with 21 or more employees must now provide reasonable accommodations to pregnant employees.  “Employees,” for the purposes of this provision, are those who have worked 12 consecutive months on half of a full-time schedule.  For pregnant employees, employers must now provide additional restroom, food, and water breaks.  Employers may also not deny requests relating to changes in seating, or require pregnant employees to lift objects weighing more than 20 pounds.  In some circumstances, employers may also have to transfer pregnant employees to less strenuous or stressful job positions, though an employer neither has to promote nor create a new position for an employee.  This part of WESA takes effect immediately.  

WESA also increases the accommodations that must be offered to nursing mothers.  Though Minnesota Statute § 181.939 already requires employers to provide nursing mothers with a space to express breast milk, WESA has amended the statute so that employers must now provide a private room, other than a bathroom or a toilet stall, that is “shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet.”  Moreover, employers are now expressly prohibited from retaliating against employees who assert rights under § 181.939, and employers who do may be liable for an employee’s actual damages, costs, and attorneys’ fees.  This provision became effective immediately, and it applies to all employers.

  1. Provides additional pregnancy and parenting leave.

WESA further amends existing Minnesota law by increasing employees’ pregnancy and parenting leave.  Under this new provision, the following employees are entitled to twelve weeks of unpaid leave:  (1) a biological or adoptive parent in conjunction with the birth or adoption of a child, and (2) a female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions.  This provision applies only to employers that have more than 21 employees at one site, and only to employees who have worked 12 months for an employer (though not necessarily 12 consecutive months).  Moreover, the leave required may be reduced by any period of paid leave or vacation, as well as any leave under the FMLA, so that the total required leave for employees does not exceed twelve weeks.  These parenting leave provisions become effective August 1, 2014.  

  1. Provides additional sick leave and “safety” leave.

Prior to WESA, Minnesota Statute § 181.9413 required employers to allow their employees to use accrued sick days to care for their minor children, adult children, spouses, siblings, parents, grandparents, and stepparents.  WESA has caused the statute to be amended, so that now employers with at least 21 employees must allow employees to use sick leave benefits to care for their mothers-in-law, fathers-in-law, and grandchildren.  The amendment further allows employees to use their sick leave for “safety leave.”  “Safety leave” is defined as “leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking.”  The amendments to § 181.9413 become effective on July 1, 2014.         

  1. Requires states contractors to certify equal pay. 

Finally, WESA amends the MHRA so that companies with more than 40 full-time employees that do business with the state in excess of $500,000 must obtain an equal pay certificate.  To obtain this certificate, employers must certify, among other things, (1) that they are complying with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the MHRA, and the Minnesota Equal Pay for Equal Work Law; and (2) that the average compensation for female employees is not consistently below the average compensation for male employees within the job categories used for EEO-1 reporting.  This law goes into effect August 1, 2014.

  1. Steps Employers Should Take to Comply With the Women’s Economic Security Act.

Many provisions of WESA have already gone into effect, and for those that have not, they will very soon.   To comply with these new laws, employers should immediately take the following steps: 

·        Amend Policies and Handbooks:  Employers should update their policies and handbooks so that they expressly allow employees to discuss their wages.  Moreover, employers should ensure that all policies and handbooks expressly state that the employer does not discriminate based on “familial status.” The policies and handbooks also should clearly lay out employees’ expanded sick and safety leave rights, as well as the additional rights for pregnant and nursing mothers.  Finally, employers need to publish all notices required under the new wage disclosure laws.   

·        Train Managers and Human Resource Employees on the New Laws:  In addition to updating their policies and handbooks, employers should also train managers and human resource personnel on the new laws.  These individuals need to understand the new protections for pregnant and nursing mothers, the new laws regarding employees’ rights to take sick leave and safety leave, and the new rights employees have to discuss their wages.  They also must understand the heavy consequences for retaliating against, or being perceived to have retaliated against, employees who choose to exercise their rights under WESA.

·        Consider the Resources Required in Certifying Compliance With the Equal Pay Act:  Employers with at least 40 employees who may wish to do business with the state should be sure to consider the costs and resources that will be required to certify compliance with the Equal Pay Act.