Gov. Dayton Signs Bill Changing ‘Confidential Employee’

The bill is intended to more narrowly define the term to allow for increased unionization.
(Published May 12, 2014)

A bill that changes the definition of “confidential employee” (Chapter 219) was signed by Gov. Dayton on May 9. It became effective the next day.

The bill, authored by Rep. Ryan Winkler (DFL-Golden Valley) and Sen. John Hoffman (DFL-Brooklyn Park), changes the definition from “has access to labor relations information …” to “is required to access and use labor relations information …”

Minnesota Statutes, section 179A.03 defines, among other terms, confidential employees. HF 2313/SF 2319 changes the confidential employee definition standard from an employee having “access” to labor relations data, to one who “is required to access and use” labor relations data.

Previously, for example, Information Technology and Human Resources staff would commonly have access to labor relations data in the course of their job duties and, therefore, would routinely meet the definition of confidential employee. With this change in the law, those positions may need to be re-examined to determine whether they meet the amended definition.

Proponents of the bill argue public employers have unnecessarily used this definition to keep public employees with any access to labor relations information from joining unions.

Public employers, including the League of Minnesota Cities, testified in committee that combining confidential and non-confidential employees in the same bargaining group may cause some difficult situations (such as confidential employees feeling pressured by non-confidential employees to provide management information). Public employers also said the definition change was unnecessary since employees with access to this information are currently allowed to unionize as confidential employees. Lastly, public employers noted the previous definition of confidential employee has been well-litigated in the Minnesota appellate courts, leading to a clear definition that labor and management have been working under for decades.

This law change will result in public-sector employers assessing whether currently defined confidential employees would remain classified as confidential. Once that determination is made, if a union does not agree with the determination, an administrative process is available for the union to challenge the classifications, but resolution does not always happen quickly. Some of these challenges can end up in court for years, which can lead to employer burdens such as staff time spent holding withheld dues in escrow until the classification issue is resolved.

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