Earned Sick & Safe Time (ESST)

+ When is a Minnesota employer in violation of ESST?

There are several ways an employer can violate Minnesota's ESST law:

• Failure to provide ESST: An employer fails to provide the amount of paid sick and safe time required by law or fails to properly credit accrued time.
• Improper denial of leave: An employer refuses to allow an employee to use accrued ESST for a qualifying reason.
• Improper restrictions: An employer imposes requirements that are not permitted by the law, such as requiring an employee to find a replacement worker as a condition of using ESST.
• Retaliation or discrimination: An employer disciplines, terminates, penalizes, threatens, coerces, or otherwise discriminates against an employee because the employee requested or used ESST, asked about their ESST rights, complained about an ESST violation, or participated in an investigation or legal proceeding.
• Improper attendance policies: An employer counts properly used ESST as an absence under an attendance-control or point system in a way that can lead to discipline or another adverse employment action.

+ What can I use Minnesota ESST for?

ESST can be used for much more than an employee simply being sick. Qualifying reasons include an employee's own mental or physical illness, injury, health condition, medical diagnosis or treatment, or preventive care. Employees may also use ESST to care for a qualifying family member.

ESST can also be used for certain absences related to domestic abuse, sexual assault, or stalking involving the employee or a family member. In addition, qualifying uses include certain closures caused by weather or a public emergency, as well as certain funeral, memorial, financial, or legal matters following the death of a family member.

+ How much ESST am I entitled to?

Generally, Minnesota employees earn at least one hour of ESST for every 30 hours worked, up to 48 hours per year. ESST begins accruing when employment begins, and employees may use accrued ESST as it becomes available.

Unused ESST generally carries over from one year to the next, although an employee's accrued, unused ESST generally cannot exceed 80 hours unless the employer provides more. Employers may instead use a qualifying front-loading system that provides the required amount of ESST at the beginning of the year.

+ Can my employer require me to find someone to cover my shift before I use ESST?

No. An employer generally cannot require an employee to find a replacement worker as a condition of using ESST. An employee may voluntarily trade shifts or find someone to cover the shift, but the employer cannot make finding a replacement a prerequisite to exercising the employee's ESST rights.

+ Can my employer discipline me for using ESST?

Generally, no. Minnesota law prohibits an employer from discharging, disciplining, penalizing, interfering with, threatening, restraining, coercing, or otherwise retaliating or discriminating against an employee because the employee exercised or attempted to exercise rights protected by the ESST law.

Importantly, an employee does not have to specifically tell the employer, "I am taking ESST," or cite the Minnesota ESST statute in order to receive protection from retaliation. An employer also cannot count properly used ESST as an absence under an attendance policy in a manner that could result in retaliation or another adverse action.

+ How do I prove an ESST violation?

The evidence needed will depend on the type of violation. In a case involving denied ESST, we would generally want to establish that you were eligible for ESST, that you had accrued available time, that you requested or attempted to use ESST for a qualifying reason, and that your employer denied the leave or failed to properly provide or credit the time.

In a retaliation case, we would look at what you told your employer, when you requested or used ESST, what your employer did in response, and the reason the employer gave for its actions. Timing can be important. For example, if an employee requests ESST and is shortly afterward disciplined, receives a negative attendance action, loses hours, or is terminated, the close timing may be evidence supporting a retaliation claim. Other evidence, such as inconsistent explanations or different treatment of employees who did not request ESST, can also be important.

+ How much is an ESST case worth?

The evidence needed will depend on the type of violation. In a case involving denied ESST, we would generally want to establish that you were eligible for ESST, that you had accrued available time, that you requested or attempted to use ESST for a qualifying reason, and that your employer denied the leave or failed to properly provide or credit the time.

In a retaliation case, we would look at what you told your employer, when you requested or used ESST, what your employer did in response, and the reason the employer gave for its actions. Timing can be important. For example, if an employee requests ESST and is shortly afterward disciplined, receives a negative attendance action, loses hours, or is terminated, the close timing may be evidence supporting a retaliation claim. Other evidence, such as inconsistent explanations or different treatment of employees who did not request ESST, can also be important.

+ Can I bring an ESST claim if I was fired or quit?

Potentially, yes. Minnesota's ESST law prohibits retaliation for exercising or attempting to exercise ESST rights, and an employee may bring a civil action for an ESST violation. Whether you have a viable claim after your employment ended will depend on what happened before your termination or resignation and whether the employer's actions violated the ESST law or another applicable employment law.

+ What is the statute of limitations for an ESST violation case in Minnesota?

Minnesota's ESST statutes provide employees with a private right of action, but unlike the FMLA, the ESST statute does not establish a specific two-year or three-year limitations period in the ESST provisions themselves. The applicable deadline can depend on the particular claim and legal theory involved. Because waiting to pursue a claim can jeopardize your rights, you should consult with an employment attorney as soon as possible after an ESST violation.

+ What should I do if my rights under Minnesota's ESST law have been violated?

Write everything down: what happened; when you requested or used ESST; who you notified; what you said to your employer; how your employer responded; whether you were disciplined, denied a promotion, had your hours reduced, or were terminated; what reason your employer gave you; and who witnessed the relevant events.

Gather documents, including pay stubs showing your ESST balance and pay, your requests to use ESST, your employer's responses, attendance records, disciplinary notices, personnel documents, employee handbooks, ESST policies, text messages, emails, and other communications with your employer.

You may also contact the Minnesota Department of Labor and Industry to file an ESST complaint. Minnesota law also allows employees to bring a civil lawsuit to address ESST violations.

If your employer has not paid you all wages you are owed or has failed to provide your final paycheck, you should request those wages in writing. Depending on the circumstances, other Minnesota or federal employment laws may also apply to your situation.