Skip to main content

1. Will the Department of Labor and Industry (DLI) have a grace period for employers to come into compliance if they are not able to reprogram their systems in time for the July 1, 2019, effective date?

The department's primary focus for the next few months will be on providing employers with the information and assistance they need to understand and implement the requirements of the new law.

2. Does an employer need to include on an earnings statement whether an employee is "exempt" or "non-exempt"?

The new Wage Theft Prevention Act does not require an employer to state on the earnings statement that an employee is "exempt" or "non-exempt." Employers are required to include on the earnings statement an employee's "rate or rates of pay and the basis thereof, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission or other method." Employers are required to include on the written notice provided to an employee the employee's employment status and whether the employee is exempt from minimum wage, overtime and other provisions of Minnesota Statutes, Chapter 177, and on what basis.

3. What does "on what basis" mean in Minn. Stat. 181.032(d)(4)?

"On what basis" means the employer must include in the written notice provided to an employee the legal basis for the exemption from minimum wage, overtime and other provisions of Minn. Stat., Chapter 177.

4. Does the employer meet the notice requirement if the employee signs the employee handbook, collective bargaining agreement or other document that includes the information required for the written notice or does the notice have to be on a separate form?

The written notice does not need to be provided by the employer in a specific format or on a specific form. However, the written notice does need to include all of the information required under the law that is specific to each employee. Collective bargaining agreements and employee handbooks may not have the level of specificity required by the notice law. For example, the specific rate or rates of pay for an employee. In addition, the written notice must include the text prepared by DLI that informs the employee they may request, by indicating on the form, the written notice be provided in a particular language. (If requested, the employer must provide the specific information required to be included in the written notice in the language requested by the employee.) DLI's employee notice example form, which – if completed correctly – could be used by employers to meet the requirements of the new notice law.

5. Does the employer need to provide changes to the notice in the language requested by the employee?

Yes, all changes to the information required to be included in the written notice should be provided in English and in the language requested by the employee prior to the date the changes take effect.

6. Is a company based in Minnesota required to comply with the new Wage Theft Prevention Act for employees working outside of Minnesota?

Employment covered by the wage and hour provisions of Minn. Stat., Chapter 181 or 177, would be covered by the new Wage Theft Prevention Act.

7. Does the complete written notice need to be given again any time there is a change to specific information included in the notice?

If a written notice has been provided to an employee, then only the changes to the information in the written notice would need to be provided to the employee in writing prior to the changes taking effect. The written changes must be provided in English as well the language requested by the employee, if any. If the employee has not requested that the written notice be provided in a language in addition to English, then the changes to the information in the written notice need only be provided in English. Employers are not required to have employees sign changes to the information in the written notice but it would be a good practice to do so.

8. Are employers required to provide employees who were already in an employment relationship July 1, 2019, with the written notice the wage theft law requires to be provided at the start of employment?

Providing a written notice to employees that clearly states their employment status and terms of employment, including wages, hours and benefits, is a good business practice. DLI strongly encourages employers to provide the written notice that includes the information required under the new law to all employees.

The new law requires employers to provide a written notice to employees at the start of their employment that includes the information set out in the new law. It further requires employers to provide employees in writing any changes to the information required to be provided in the written notice, prior to the date the changes take effect.

DLI recognizes the notice requirements of the new law have been understood by some to simply require employers provide to employees, who they already employed at the time the new law took effect, written notice of changes to the information whether or not they had received the complete initial notice.

However, DLI believes to effectively provide notice that information is being changed, to employees who have not received the initial notice, the initial notice – including the changes – be provided to employees. The department believes this is a prudent course for employers to follow to be confident they are fully meeting the notice requirements of the new law and, importantly, the associated language requirement.

9. Are employers required to provide a new notice to employees each time their rate of pay changes?

Changes to the employee’s rate of pay would be a change to the information required to be provided to employees in the written notice. See also answers 7 and 8 above.

10. Should management employees be given the written notice required by the new Wage Theft Prevention Act or would they be excluded under the executive/professional/administrative employee designation? Who is covered by these requirements, which types of "employees?"

The new Wage Theft Prevention Act does not exclude any employees from the written notice requirement and requires that employers provide the written notice to all employees.

11. When would a new or revised written notice be required?

The new law requires employers to provide a written notice to employees at the start of their employment that includes the information set out in the new law. It further requires employers to provide employees in writing any changes to the information required to be provided in the written notice, prior to the date the changes take effect.

See also answers to questions 5, 7, 8 and 9.

12. Will the Department of Labor and Industry be issuing a template written notice for employers to use? If so, when will that be available?

Yes, DLI has prepared an example written employee notice. The example written employee notice includes required text in the 12 most common languages spoken in Minnesota, which informs employees that they may request, by indicating on the form, the written notice be provided in a particular language. This text in the 12 languages must be included with the written notice whether the employer uses the example written notice prepared by the department or uses a written notice it has prepared.

13. Do you have the written notice translated into other languages? If not, when will that be available?

DLI is in the process of translating the example written employee notice into the 12 most common languages spoken in Minnesota based on state demographic data. When translated, the example written notices will be available on the Wage Theft Legislation 2019 and Summaries webpage.

14. Can the written notice provided by the employer be given to employees electronically? Can the employee sign the notice electronically? If so, what level of electronic signature is required? Is it the standard under Minnesota Statutes § 325L?

Yes, employers may provide the written notice to employees electronically. The written notice must be provided in English as well as the language requested by the employee, if any. An electronic signature, as defined in Minn. Stat. § 325L.02, acknowledging receipt of the written notice satisfies the employee signature requirement. If the written notice is provided to employees electronically, the employer must provide a means by which the employee is able to secure a copy of the written notice, such as a printed paper copy or a downloaded copy on a personal computer, laptop, tablet or mobile device.

15. Is emailing the notice to an employee sufficient to meet the signature requirement?

No, the new Wage Theft Prevention Act requires the written notice be signed by an employee acknowledging receipt of the written notice.

16. What are the requirements for keeping "personnel policies provided to the employee, including date the policies were given to the employee and a brief description of the policies?"

This is a new recordkeeping requirement for employers. It requires employers to keep a list of the personnel policies provided to an employee, including the date the policies were given to the employee and a brief description of the policies. This applies to all employees, not just new employees. Records must be kept by an employer for at least three years.

17. For the responsible contractor requirements, is the three-year look-back retroactive prior to this new law or just for violations found on or after July 1, 2019?

At the time a contractor is required to verify its compliance under Minn. Stat. § 16C.285, a contractor is required to verify it has not violated any of the sections listed in Minn. Stat. § 16C.285, subd. 3 (2). When the amendments to Minn. Stat. § 16C.285, subd. 3 (2) went into effect July 1, 2019, contractors became required to verify they have not violated the newly added sections (Minn. Stat. §§ 181.03 and 181.101), in addition to the sections previously listed in the law, during the three-year period before submitting the verification.

18. What should an employer list for the "number of days in the pay period" on the written notice if the number of days varies? For example, if the employer pay periods are the first through the 15th and the 15th through the end of the month?

The employer should indicate the number of days in the pay period varies from 13 to 16 depending on the month and the regularly scheduled paydays are the 15th and last day of each month.

19. What is meant by "allowances claimed pursuant to permitted meals and lodging?" Does this include expense reimbursements to employees for meals and lodging?

No, this is not a reference to expense reimbursements. The allowances, for purposes of the statement of earnings and written notice, are required if an employer is crediting a meal or lodging allowance toward the wages owed an employee pursuant to Minnesota Rules 5200.0060 or 5200.0070.

20. Regarding sharing of information to employees and licensing agencies:  When is this applicable? What are some typical situations under which an "order to comply" would be issued?

DLI issues orders to comply when an employer is found to have violated one or more of the laws under DLI's enforcement authority. These laws include:  minimum wage; overtime; recordkeeping; prevailing wage; failure to pay wages, salaries, commissions or gratuities; deductions from wages; tip sharing; nursing mothers; leave and accommodations; and child labor.

21. What is meant by "employment status" in the context of the written employee notice?

In the written employee notice, an employer is required to state an employee's employment status. To meet this requirement, an employer must state whether an employee is covered by (non-exempt) or not covered by (exempt) minimum wage, overtime and/or other provisions of Minnesota Statutes Chapter 177 and on what basis they are covered (non-exempt) or not covered (exempt) by one or more of those provisions.

See also answers to questions 2 and 3.

22. Can the employer's contact information be included on the second page of an employee's check stub? This second page is called a continuation form and is used by some payroll companies.

Yes, provided the second page containing the employer's physical address, mailing address and telephone number, as required by the new Wage Theft Prevention Act, is always provided as part of the statement of earnings at the end of each pay period.

23. Regarding "intent to defraud" in the criminal wage theft provision:  Is there any definition or something similar that explains what this means in a practical or plain-language sense? Are there any examples?

The Department of Labor and Industry is not the enforcement authority for the criminal provisions of the new Wage Theft Prevention Act. The new criminal wage theft provisions would be investigated by law enforcement agencies with criminal law enforcement authority and prosecuted by city attorneys, county attorneys or the state attorney general’s office when requested by a county attorney.

24. Who specifically in the company would be convicted of the felony under this new law?

The Department of Labor and Industry is not the enforcement authority for the criminal provisions of the new Wage Theft Prevention Act. The new criminal wage theft provisions would be investigated by law enforcement agencies with criminal law enforcement authority and prosecuted by city attorneys, county attorneys and the state attorney general’s office when requested by a county attorney.

25. What is the threshold of a new hire for purposes of the written notice requirement? Are seasonal employees included? If an employee works seasonally, are they a new hire when they return?

Employers are required to provide the written notice to all employees at the start of employment, which includes seasonal employees. If a seasonal employee's employment ends and the employee is hired again at the beginning of the next season, the employee must receive the written notice at the start of employment for the next season.

26. Does the employer need to provide an employee with new pay information every time they increase an employee's pay? If they haven't given the employee new pay information (or if they have but haven't received a signed copy from the employee) is the employer not allowed to increase the employee's pay?

The employer must provide an employee in writing the change in the employee's rate of pay each time the employee's rate of pay changes, in English and the language requested by the employee, if any. The law states the employee needs to receive in writing a notice of the change prior to the change taking effect. There is no requirement that the employee sign the written notice of a change unless the change is included in the written notice provided to an employee who has not previously received a written notice. The written notice must comply with all the requirements of Minn. Stat. § 181.032(d) and (e).

See also answers to questions 5, 7, 8 and 9.

27. For the purposes of maintaining records and having them available for inspection, can the employer maintain the records electronically and provide DLI with a link to access them upon demand of inspection?

Employers may keep records electronically as long as they are readily available for inspection by DLI upon demand and DLI is able to secure copies of the records.

28. When employees request the written notice in a language other than English, what information needs to be provided in the requested language? What is the expected timeframe for this information to be translated and provided to the employees?

If an employee requests the written notice in a language other than English, the employer must provide the written notice, including all required information, to the employee in that language. The written notice example prepared by DLI has been translated into the 13 most commonly spoken languages in Minnesota and is available on the DLI webpage for use by employers. DLI will work to assist employers whose employees request the written notice be provided in a language other than the 13 languages already translated by DLI.

The law does not establish a time by which the written notice must be provided to an employee in the language requested by the employee. However, providing the written notice in the requested language should be accomplished as close as possible to the start of employment.

29. Can an employer provide links on the written notice template that point to policies, such as the policies around time-off plans or payroll schedules, instead of including that information on the employee notice?

Yes, employers may add links to the information required to be provided to the employee in the written notice. If an employee requests the written notice be provided in a language other than English, the linked information must be in the language requested by the employee.

See also answer to question 4.

30. What is considered the "start" of employment for purposes of providing the written notice to employees? Is this upon "hire"?

The "start" of employment is when the employee begins performing work for the employer. The written notice provision of the new law does not use the term "hire." An employer may give the written notice before the start of employment.

31. In consideration of the broad definition of "employer" with respect to this law, will DLI consider professional employer organizations and payroll processors subject to the law's requirements (especially the recordkeeping requirements)?

All employers are subject to the law's requirement. Employers will be held responsible for compliance with the law's requirements for each of their employees.

32. Is there someone at DLI who we can partner with or use as a resource to determine if any of our existing processes meet the requirements? Or, perhaps, tweak existing processes to be in compliance?

The resources provided on the DLI website, including these questions and answers, are intended to provide needed guidance to employers to allow them to assess their existing practices and bring them in to compliance with the new Wage Theft Prevention Act requirements. If an employer is seeking a legal review of its existing practices and legal advice about whether they meet the requirements of the new law, the employer may wish to consult with a private attorney experienced in labor and employment law in Minnesota.

33. What is the consequence to employers if employees receive changes to the employee written notice after the changes have gone into effect?

This will depend on the facts of the situation and the consequences for employees who were not provided the written notice before the changes went into effect. Employers who violate the employee notice and recordkeeping requirements may be issued a Commissioner Order to Comply that imposes remedies provided for in Minn. Stat. § 177.27 and civil recordkeeping penalties. Employees may also bring a private civil action seeking similar remedies and penalties.

34. The employee notice must include "a list of deductions that may be made from the employee's pay." How comprehensive does this information need to be? Does the exact dollar amount of the deductions need to be listed? Do the different types of health insurance plans and the subcategories (family, married, etc.) need to be broken down? What about child support or wage garnishments? Are the exact amounts of deductions required to be listed and, therefore, a new notice issued each week or pay period?

The written notice should identify all of the deductions that may be made by the employer from an employee's pay. The amount of each deduction does not need to be indicated in the written notice. If the amount of the deduction is known, the employer may include the amount in the written notice. The example written employee notice prepared by DLI allows for the employer to fill in the amount for each deduction, allowing for that contingency. A list of deductions, including the amount of the deduction, is required in the statement of earnings that must be provided to the employee by the employer at the end of each pay period.

35. Is there a minimum business or employer size that needs to comply with the new laws?

No, all employers must comply with the new Wage Theft Prevention Act.

36. If there is a joint employer, should one or both be listed on the written notice?

All employers are subject to the law's written employee notice requirements and employers, including joint employers, will be held responsible for compliance with the law's requirements for each of their employees, including those employed jointly. The new Wage Theft Prevention Act requires specific information about an employee's employer be provided on the written notice and the earnings statement. If two employers jointly employ an employee, each employer is responsible for providing a written notice to the employee that meets the requirements of the law. The law does not preclude joint employers from meeting this requirement by providing the employee with a joint written notice that provides the required information, including the required information about both employers.

37. If a company is based outside of Minnesota but has employees who occasionally work in the state (for up to a few months at a time) what are the employee notice requirements? For example, an employee is hired in August in Colorado and then works in Minnesota from October through December. Would a notice need to be issued while the person is in Minnesota or only if a notice term changes while the person is working in Minnesota?

Employment covered by the wage and hour provisions of Minn. Stat., Chapters 181 or 177, would be covered by the new Wage Theft Prevention Act. Application of the law would depend on the application of multiple factors and would be highly fact dependent.

38. Do the recordkeeping requirements only pertain to those considered employees under the Minnesota Fair Labor Standards Act (MFLSA) or to others as well?

No, under Minn. Stat. § 177.30, the recordkeeping requirements apply to all employers subject to MFLSA and the Minnesota Prevailing Wage Act. In addition, the recordkeeping requirement in Minn. Stat. § 181.032 applies to all employers and requires employers to keep a copy of the written notice provided to each employee and any written changes.

39. Do the policies required to be kept and briefly summarized include state and federal laws, like Minnesota parental leave, the U.S. Family and Medical Leave Act (FMLA), etc?

The employer must maintain a list of all personnel policies provided by the employer to the employee, with the date the policy was provided and a brief description of the policy.

40. If a language other than English is requested, what is the timeline or expectation to fulfill that request?

The law does not establish a time by which the written notice must be provided to an employee in the language requested by the employee. However, providing the written notice in the requested language should be accomplished as close as possible to the start of employment. The written notice example prepared by DLI has been translated into the 13 most commonly spoken languages in Minnesota and is available on the DLI webpage for use by employers. A list of reputable translation services for other language translation requests can be found on the English version of the example employee notice posted on the DLI website.

41. We are an employer in Iowa, but have a few employees in Minnesota. Are we required to follow Minnesota's new Wage Theft Prevention Act for these employees? What is the statute citation that addresses this?

Employment covered by the wage and hour provisions of Minn. Stat., Chapters 181 or 177, would be covered by the new Wage Theft Prevention Act. Application of the law would depend on the application of multiple factors and would be highly fact dependent.

42. What is the penalty for not having the translated language on the written notice?

This will depend on the facts of the situation and the consequences for employees. Pursuant to Minn. Stat. § 177.27, subd. 4 and 7, the commissioner may issue an order requiring an employer to comply with the written notice requirements in Minn. Stat. § 181.032, including the requirement that the notice be translated into a requested language. The order may impose the appropriate remedies and penalties included in Minn. Stat. § 177.27, subd. 7. In addition, the commissioner may issue civil penalties to an employer pursuant to Minn. Stat. § 177.30 for failure to maintain records, including the notice provided to each employee as required by Minn. Stat. § 181.032, paragraph (d). This penalty may be up to $1,000 for each violation and up to $5,000 for each repeated failure to comply with the law's requirements. Lastly, the employer may be charged with a misdemeanor under Minn. Stat. § 177.32, sub. 1 (3).

43. Is there a specific person who should sign the written employee notice on behalf of the employer or can the employer designate someone to sign on behalf the employer?

The new Wage Theft Prevention Act requires that the employee sign the written notice acknowledging receipt. The new Wage Theft Prevention Act does not require the employer to sign the written notice but other laws may require the employer to sign the written notice if the written notice is being used to also meet the requirements of those laws, see for example, Minn. Stat. § 181.55. DLI in its example written notice has provided for both the employee's and the employer's signature, allowing for that contingency. The written notice, if signed by the employer, should be signed by an individual authorized to sign on behalf of the employer.

44. Who should sign the form on behalf of the employer if the written employee notice is being issued to the "top" employee, for example the president, executive director, owner/worker, etc.?

The new Wage Theft Prevention Act requires that the employee sign the written notice acknowledging receipt. The new Wage Theft Prevention Act does not require that the employer sign the written notice but other laws may require the employer to sign the written notice if the written notice is being used to also meet the requirements of those laws, see for example, Minn. Stat. § 181.55. DLI in its example written notice has provided for both the employee's and the employer's signature, allowing for that contingency. The written notice, if signed by the employer, should be signed by an individual authorized to sign on behalf of the employer.

45. Minnesota Statutes § 181.032 (e) provides that the commissioner shall "assist employers with translation of the notice in the languages requested by their employees." What kind of assistance will be provided and how does an employer request such assistance?

DLI is in the process of translating the example written notice into the 12 most common languages spoken in Minnesota. When translated, the written notices will be available on the Wage Theft Legislation 2019 and Summaries webpage. DLI will provide a list of reputable translation services for other language requests. That list can be found on the English version of the example employee notice.

46. Will awarding a discretionary or nondiscretionary bonus to an employee require a written change notification?

A discretionary bonus, for example, an end of the year bonus, would not likely constitute a rate of pay as contemplated by the new notice requirement and is, therefore, not required in the initial written notice and will not require a written change notification. A nondiscretionary bonus, for example, additional wages earned after a certain goal is reached, is required to be identified as a rate of pay in the initial written notice and requires a written change notification if changed.

47. What parts of the new law pertain to those exempt from the Minnesota Fair Labor Standards Act (Minn. Stat., Ch. 177)?

The definition of employee in the Minnesota Fair Labor Standards Act (MFLSA), Minn. Stat. § 177.23, subd. 7, applies to MFLSA; MFLSA definitions are limited in scope. Minnesota Statutes § 177.23, subd. 1. The new notice requirements, changes to the required statement of earnings and changes to payment of wages are in Minn. Stat., Ch. 181. Whether a specific worker is an employee under Minn. Stat., Ch. 181, is a separate analysis that is highly fact-dependent.

48. The law states the earnings statement must include "the total hours worked by the employee in the pay period." Does this mean that simply the number of hours paid must be shown or must the number of hours worked need to be described differently than the hours paid due to PTO or holiday time? In other words, would "80 hours" be acceptable on the earnings statement when the person has earned 80 hours of pay – even if the pay period had an eight-hour holiday and 16 hours of PTO, and only 56 hours of time actually worked?

The requirement that an earning statement include "the total number of hours worked by the employee unless exempt from chapter 177" was not affected by the new Wage Theft Prevention Act.

49. Does the employer need to show on the earnings statement the number of hours worked even for salaried/FLSA-exempt employees? Or is showing their earnings as "salary" sufficient?

Minnesota Statutes § 181.032 (b) (4) requires that an earnings statement include "the total number of hours worked by the employee unless exempt from chapter 177." This provision was not affected by the new Wage Theft Prevention Act.

50. Are employers on prevailing-wage projects required to provide each employee with the rates or can the employer refer the employees to the posting of the rates instead?

Employees must be provided with a written notice of any changes to the information in the initial written notice, including rates of pay. If the rates of the prevailing-wage project were not included in the initial written notice, then the new applicable rates for the prevailing-wage job need to be provided to the employees via a written change notification. The written change notice can be provided in hard copy or electronically.

Simply referring employees to a jobsite posting is not sufficient to meet the initial notice or the change notice requirements. If the employer wants to use a jobsite posting to meet its notice obligations, the jobsite posting, including the prevailing-wage rates that apply to the employee, must be attached to the initial written notice or written change notice. The initial written notice or change notice and the attachments must contain enough specifics for the employee to identify the applicable rate or rates of pay for their job classification(s).

51. The law states that an employer must pay all commissions earned by an employee at least once every three months. When are commissions earned?

The law does not define when commissions are earned. This is typically defined in an agreement between the employer and employee. Once commissions are earned, they must be paid within three months.

52. An employer specifically references provisions of a collective bargaining agreement (CBA) in the written notice and delivers a full copy of the CBA to the employee. If an employee requests that the notice be provided in a different language, is the employer obligated to translate the entire CBA or only those portions of the CBA specifically referenced in the notice to meet the notice requirement?

The employer is obligated to translate the portions of the CBA specifically referenced in the notice requirement that are necessary to convey the information statutorily required in the written notice.

Still have a question?

If you didn't find your question answered above, email it to DLI Labor Standards at dli.laborstandards@state.mn.us.