Legislative Sausage Making or "I'm Just a Bill"
Every year we learn of new legislation passed by the Legislature that is likely to affect the practice of law. Less often reported, but perhaps just as interesting, are those bills that are introduced but fall by the wayside.
by Jeffrey R. Johnson
If you're a child of the '70s, as I am, an important part of every childhood Saturday morning was likely your weekly fix of "School House Rock," the musical cartoon vignettes that taught us all about math, science, grammar, and government. It is primarily because of School House Rocky and his friends that I can recite the Preamble to the Constitution, explain to you why Three is a magic number, and understand the intricacies of how a bill becomes law. Although I've used this knowledge advantageously all my life, that last bit of information has served me particularly well recently in my first years in the Minnesota House of Representatives.
For those who don't remember the story of the aptly named character Bill, here's a short description.
Bill is sitting on the steps of the U.S. Capitol explaining to a little visitor from out of town why he's sitting outside the Capitol rather than inside and why he's looking so sad. Bill replies in those words that most 35-year-olds can still sing to this day:
Those of us active in the employment law arena learn every year about new laws affecting our practice that passed the Legislature and were signed by the governor. We seldom, however, hear about the employment or labor law bills that didn't quite make the cut.
In the course of the past few years I have been amazed by some of the ... interesting ... employment law bills that are introduced in the House of Representatives. Some of these bills never see the light of day, while others benefit from extensive hearings before suffering deaths that are sometimes ugly and newsworthy, other times silent and painless.
Those of us who are familiar with the legislative process (or who grew up with School House Rocky) know that there are any number of reasons for the death of a bill. If a particular bill is disfavored by a committee chair, it might never even get its first hearing. Even given a hearing, a bill can die in any one of what often are a string of committee hearings. Sometimes opponents of a relatively simple bill are successful in loading it with so many amendments in committee that the author of the bill will withdraw it and wait to fight another year. A bill can survive the daunting committee process but never be heard on the House or Senate floor due to opposition from the leadership of the majority caucus. It can also be killed via floor vote in either legislative chamber or be vetoed by the governor. Finally, there are several bills introduced each year for purely political purposes -- bills that the author requests not be heard in committee, as the author has no interest in passing the bill, only being able to say that he or she authored it.
I have included below some highlights of unsuccessful employment law bills introduced in the 2001 and 2002 sessions. Some of these bills were thoughtful and promising, others were not. I'm fully aware that my opinions as to which category each of these bills fits in are likely not wanted nor shared by many of you. I'll leave my opinions out (as best I can) and let you decide on your own the wisdom of each of the bills introduced.
If nothing else, this short list of failed legislation might prompt some employment and labor lawyers to keep an eye on some of those "interesting" bills that are flying under the radar every session -- some of which will inevitably become law in the future.
By the way, recall that in the end of our Saturday morning government lesson, we hear a chorus of hallelujahs as Bill receives word from an overweight bald man (as all important men in Washington appear when you're eight years old): "They signed ya Bill; now you're a law!"
The following bills1never heard the hallelujahs or those long-awaited words from The Bald Man. They still sit on the Capitol steps and wait -- maybe until next year, maybe forever.
HF 701 -- Drug and Alcohol Testing
One of the most interesting employment law bills of 2001 contained provisions which would allow for employers to conduct on-site initial screening tests for drugs and alcohol. I sat through two days of hearings on this bill in the Commerce, Jobs and Economic Development Committee and learned a couple things: 1) employee drug testing is a very touchy topic, and 2) most legislators don't have a clue as to current laws regarding employee testing and had roughly the same level of knowledge regarding this particular proposal to change those laws.
Current law requires that employers who request employees or applicants to undergo drug or alcohol testing must use the services of an outside testing laboratory. The law provides that a laboratory must give an initial screening test and, if that test produces a positive result, must conduct a confirmatory test before reporting any results to an employer.
House File 701 would have allowed employers themselves to conduct initial screening tests on company property using relatively simple testing products that are now available in the marketplace. If the initial test produced a positive result, the employer would then be required to immediately send the sample to an outside testing laboratory for a confirmatory test under the same regulations as current law.
One testing product that we observed in committee was essentially a covered plastic cup that would automatically provide test results on an insert in the cup once a person urinated into it. Each member of the committee received a cup and I have kept mine as a lasting memento of my freshman term in the Legislature. (I have not, however, inquired with the Campaign Finance Board as to whether this constitutes an illegal gift to a sitting legislator). The cup would be given to the employee in a sealed plastic bag, the employee would then go to a private place and urinate into the cup and seal it. If the seal was broken after the employee sealed the cup, the sample would be spoiled.
The bill contained provisions regarding chain-of-custody procedures, training for any person administering on-site tests, and employee privacy rights. It also contained provisions purportedly addressing concerns about employer tampering with samples. For example, the bill required that any testing container could be securely sealed by the employee and not opened by the employer, would have no holes once sealed that would allow employer access to the sample, and would be individually packaged and sealed so that an employee could see it being taken out of its package.
The author of the bill (and representatives from the company that manufactured one type of disposable testing container) told us that the benefits of this bill would be cost savings for employers and an ability for employees and employers to very quickly see the initial screening results of a test. Opponents of the bill raised concerns about employer tampering, the reliability of these devices, and employee testing in general.
The bill survived the House committee process, but was never heard on the House floor as it did not progress in the Senate.
HF 846 -- HIV/AIDS Education in the Workplace
This short bill appropriated $300,000 from the general fund to provide education to employers "to support hiv general education and awareness and to improve capacities to manage hiv in the workplace."
HF 35 and HF 3436 -- Minimum Wage Increases
As is common in every legislative session, bills were introduced to increase the minimum wage in Minnesota. Currently, federal law requires businesses that have gross annual sales revenue of at least $500,000 to pay an hourly wage of at least $5.15 (with some exceptions). Current Minnesota law requires the same $5.15 rate for employers whose annual gross sales are at least $500,000 (defined as "large employers"), and requires a rate of $4.90 per hour for all other employers (defined as "small employers").
House File 35 would have raised the rates to $6.15 for large employers and $5.90 for small employers. House File 3436 would have raised the rates to $7.00 for large employers and $6.75 for small employers.
On an interesting note, the companion to HF 35 in the Senate was Senate File 1, a number and an honor usually reserved for one of the top leadership priorities of each session. None of the minimum wage increase bills made it to the floor for a vote in either the House or the Senate.
HF 720 -- Employee Inventions
Current Minnesota statute essentially provides that employers can require employees to assign to the employer their rights in inventions that are developed using resources or trade secret information of the employer or are developed by the employee on time paid for by the employer.
In the event that a contract had been created between an employer and employee assigning such rights, House File 720 would have regulated the contract as follows: An employee could submit any invention or proposal to the employer in dated written form. If the employer agreed to develop or use the invention or proposal, it had to make that decision within one year of the written submission by the employee and make a "substantial investment" in the invention or proposal within a year of that decision or forfeit all rights to the invention to the employee.
HF 1714 -- Smoking Prohibited in the Workplace
This bill would have prohibited smoking in any place of work except for designated areas of bars and restaurants. In bars and restaurants, an employer would not be allowed to require an employee to enter the designated smoking area without the employee's consent.
HF 386 -- Electronic Monitoring Notice
Most employers today have provided electronic monitoring policies of some sort to their employees informing employees that they should not have an expectation of privacy in their use of email, Internet, or telephones at work. These policies, however, are not currently required by statute.
House File 386 would have required employers to disseminate a written policy before any electronic monitoring of an employee could be conducted. The bill would have required that the policy include disclosure of the form and frequency of monitoring that may be conducted, the data to be collected, how the data would be used, and an explanation of the employer's policies with respect to personal use of employer-owned equipment.
The bill would have prohibited discipline or discharge of an employee based on information obtained through electronic monitoring unless the written notice required by the bill had been provided.
The bill also provided for a civil action against an employer for violation of the requirements.
HF 415 -- Employer Job References
This bill in some form has been bouncing around the Legislature for several years. Its passage is consistently one of the top priorities of the Minnesota Chamber of Commerce, but is just as consistently opposed by labor organizations and the Minnesota Trial Lawyers' Association.
Currently, the law in Minnesota regarding employer disclosure of general employment information about an employee or former employee to a prospective employer is governed by case law. Based upon a real or perceived fear of defamation claims, most employers that I have encountered over the years have instituted a tight-lipped policy regarding this issue, sharing only very basic information regarding job titles and employment dates.
House File 415 would have created statutory provisions regarding this issue. The bill dealt with a relatively narrow set of information that an employer could share with a prospective employer:
In the event that an employer shared any of the above information, a defamation action could only succeed if an employee or former employee demonstrated by clear and convincing evidence that:
The bill also provided for employer disclosure of other employment information, but only with the written consent of the current or former employee. In addition, the bill provided that any information regarding violence, theft, harassment or illegal activity disclosed by an employer must be shared with the employee.
I heard significant testimony and discussion regarding this bill in both 2001 and 2002. Opponents argued that the clear and convincing evidence standard would make success nearly impossible in a defamation suit. The bill's supporters countered that the bill was very narrow and dealt only with information that a prospective employer should have about an applicant before making a hiring decision.
This bill will almost certainly be back in 2003.
HF 685 -- Employment of Minors
This bill was short and sweet, but would likely have had a significant effect on some employers. The bill would have prohibited any person under the age of 18 from working after 6:00 p.m. or before 6:00 a.m. unless the minor was supervised by an adult employee who was physically present on the premises.
HF 895 -- Temporary Workers Bill of Rights
House File 895 was a compilation of several provisions pertaining to temporary employment companies ("tec"s) and the workers they employ to work temporarily at different client locations. The bill would have required tecs to post or otherwise provide to each of their employees or applicants a detailed list of all client companies at which work was available at that particular time. The list would include information about each job, including a detailed description of the work to be performed, compensation and benefit information, any fees to be paid to the tec by the client, information regarding the duration of the job and the times of day the work was to be performed, and several more pieces of information.
Among other provisions, the bill would also have prohibited a tec from restricting the right of a temporary worker to accept a permanent position with a client company.
Criminal and civil penalties for violation were also included in the bill.
HF 1444 -- Abolition of Withholding Tax on Wages
Anyone who follows politics knows that this bill had little to do with employment law and much to do with making a statement regarding taxation and government spending. The bill would have eliminated withholding by employers and required all employees to submit estimated taxes on a monthly basis. As described by the author, the point would be to open taxpayers' eyes to the amount of money they are paying each month to the state of Minnesota.
Although the purpose of the bill was probably not related to employment law concerns, the bill's passage would have had a significant effect on nearly every employer in Minnesota.
HF 1623 -- Voluntary Paid Parental Leave
This bill would have created a system whereby the state of Minnesota would have reimbursed an employer for one half of any payments it chose to give to an employee taking leave in conjunction with the birth or adoption of a child. The reimbursement would have been subject to a maximum of $250 per week. Reimbursement would have been limited to 26 weeks for any employee.
HF 2525 -- Unpaid Volunteer Firefighter Leave
This bill would have required an employer to grant up to 40 hours of unpaid leave per year in order for an employee to perform emergency response duties as a volunteer firefighter.
An interesting piece of information regarding the making of sausage and law: in committee, the language in this bill was entirely deleted and replaced with language making certain fireworks legal in Minnesota. The bill as amended became law (without the leave language).
HF 2807 -- Ergonomics Standards
This bill would have required the commissioner of labor and industry to adopt an occupational safety and health standard regulating workplace ergonomic hazards to prevent work-related musculoskeletal disorders. The bill gave only slight guidance as to what the standards should look like, although it came about on the heels of osha's proposed standards that were scrapped by the Bush Administration.
HF 3471 -- Clarification of Sexual Harassment Definition
In 2001, a change to the definition of sexual harassment under Section 363.01, Sub. 41 was signed into law. It eliminated the following language from the definition: "the employer knows or should know of the existence of harassment and fails to take timely and appropriate action." This change was made at the request of the Minnesota Human Rights Department, purportedly to conform Minnesota statutory law to the Faragher and Ellerth cases of 19981, which created a new standard for supervisor harassment under Title VII of the Civil Rights Act. Based upon committee testimony in 2001, there was no intention to create strict liability for Minnesota employers in all sexual harassment cases, despite the belief by some that the language did just that.
The concern that the 2001 change could do much more than its intent led to the introduction in 2002 of House File 3471. This bill would have restored the "know or should know" language and also would have inserted new language providing that allegations of harassment by a supervisor would be subject to all the defenses and burdens of proof applying to sexual harassment claims brought under Title VII. This would have purportedly brought Minnesota statutory law in line with Faragher and Ellerth.
Based upon some confusion, and opposition from the mhrd, the bill did not receive a hearing in either the House or the Senate.
I suspect this bill will return in 2003.
Many of these bills will be back in 2003 and, I would expect, at least a couple of them will survive the grueling legislative process, make it past Governor Pawlenty's desk and finally join Bill in the statute books.
2 Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
JEFFREY R. JOHNSON serves as assistant majority leader and represents District 43A (Plymouth) in the Minnesota House of Representatives. He received his J.D. from the Georgetown University Law School.