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BOP NEWSLETTER • July 2024

Minnesota: New Increased Liability for Misclassifying Workers as Independent Contractors

Effective July 1, 2024 all employers risk significantly increased penalties for misclassifying employees as independent contractors.

Under the new law, all employers are subject to liability for: 

  1. failing to classify, represent, or treat an individual as an employee under local, state, or federal law; 
  2. failing to report or disclose a person as an employee to any local, state, or federal government agency when required; or 
  3. requiring an individual who is an employee to enter into an agreement or complete any document that misclassifies an individual as an independent contractor.

Employers may face penalties of up to $10,000 for each individual violation. As an example, if 100 employees were misclassified as independent contractors, the Department of Labor and Industry (DOLI) could issue a fine of up to $1,000,000 to the employer for the misclassifications. If the employer also failed to report the individuals as employees to a state agency, such as to the unemployment insurance division, it could face additional penalties. Individual owners, officers, or agents who knowingly or repeatedly engage in any of the prohibited activities may also be held liable.

As a remedy for misclassification, DOLI may order the employer to pay compensatory damages to each affected worker in the form of: minimum wage, overtime, shift differentials, vacation pay, sick pay, health insurance, life and disability insurance, retirement plans, savings plans and other employment benefits, as well as employer contributions to unemployment, Social Security, and Medicare.

New York: State Budget Creates New Obligations for Employers

Effective June 19, 2024: Paid Nursing Breaks

Employers are now required to provide 30 minutes of paid break time for expressing milk for a nursing employee’s child. This is in addition to any paid breaks or unpaid meal breaks an employee may already have available for expressing milk during work hours. Employees may exercise their rights under this law for up to 3 years following childbirth.

Effective January 1, 2025: Paid Prenatal Leave

Employers will be required to provide 20 hours of paid prenatal leave each year to employees during their pregnancy for pregnancy-related healthcare services, which include physical examinations, medical procedures, monitoring and testing, and discussions with a healthcare provider related to the pregnancy. Paid prenatal leave is separate from existing requirements under the state’s paid sick leave law. There is no waiting period for using time for paid prenatal leave.

Effective July 31, 2025: Covid-19 Paid Sick Leave Law will Sunset

The law, originally enacted in March 2020, never contained an expiration date. The approved budget provides a sunset date of July 31, 2025, at which time the law will be deemed repealed.

Colorado: Employers Restricted from Requesting Age-Related Information from Applicants

As of July 1, 2024, the Job Application Fairness Act (JAFA) bars Colorado employers from requesting or requiring that job applicants provide information related to “age, date of birth, or dates of attendance at or graduation from an educational institution” on initial employment applications.

If a position requires certification or transcripts, an employer may require copies of such information “at the time of an initial employment application,” but employers must notify applicants that they may redact information identifying age, date of birth, and/or dates of attendance at or graduation from an educational institution.

JAFA also allows employers to request that applicants verify compliance with age requirements that are required by: 

  1. “a bona fide occupational qualification pertaining to public or occupational safety,” 
  2. “a federal law or regulation,” or 
  3. “a state or local law or regulation based on a bona fide occupational qualification.” 

Such verification requests may not require disclosure of an individual’s specific age, date of birth, or dates of attendance at or graduation from an educational institution on an initial employment application.

Penalties for violations of JAFA increase with each subsequent violation. For purposes of assessing penalties, “each distinct job posting violating [the statute] constitutes a separate violation.”

Illinois: Pay Transparency Law Enacted

Beginning January 1, 2025, the newly amended Illinois Equal Pay Act of 2003 will require employers with at least 15 employees to include in job postings the “pay scale and benefits” meaning “the wage or salary, or wage or salary range, and a general description of the benefits and other compensation… that the employer reasonably expects in good faith to offer for the position.”

The law applies to positions that “will be physically performed, at least in part, in Illinois” or will be performed outside the state but the “employee reports to a supervisor, office, or other work site in Illinois.” 

The new law defines “benefits and other compensation” to include but not be limited to “bonuses, stock options, or other incentives.” Pay scales are to be set by reference to “any applicable pay scale, the previously determined range for the position, the previously determined range for the position, the actual range of others currently holding equivalent positions, or the budgeted amount for the position, as applicable.”

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