Perhaps now more than ever before, a person’s political stance on the most hotly debated issues is so strongly tied to their personal identity. This is exactly why employers cannot ignore the real likelihood that political expression will seep into the workplace.
With the presidential election on November 5 rapidly approaching, registered voters are exploring various options for casting their ballots on Election Day. Given the vast differences in voting leave amongst states, employers should familiarize themselves with the laws in any state where they have employees and make key decision-makers aware of them.
Intermittent leave allows employees to use leave time on an as-needed or periodic basis, but it reduces the employee’s usual weekly or daily work schedule. The following tips can help you navigate the process when you receive a request for intermittent FMLA leave.
Pay transparency laws are regulations that require employers to disclose salary information. Illinois’s pay transparency law (HB 3129), as well as similar laws in states including Minnesota and Vermont, take effect on January 1, 2025.
In this brief state law update, we'll cover new and updated posters required by state and local law for employers operating in those locations. Locate your state below to determine if any of the following updated employment posters and notices apply to you. Links to posters provided.
Most employers have policies and procedures in place to maintain an atmosphere of safety and mutual respect in the workplace. These policies often prohibit employees from engaging in unlawful behavior, such as harassment, discrimination, and retaliation. But what happens when a third party (i.e., a customer, vendor, or other party outside of an employer’s direct control) engages in bad behavior – is the employer liable for a third party’s behavior? It depends.
Traveling to the U.S. can be grueling. By the time you arrive at Customs and Border Protection, all you want is to get through and be on your way. But diligence and a little extra time at CBP can save you headaches, money, and unnecessary travel later on.
As the 2024 construction season gets underway, and with an increasing number of construction projects being completed with a mix of union and non-union subcontractors, many workers have legitimate questions about their rights and responsibilities on such mixed-staffed projects.
On August 23, 2024, in the case of Restaurant Law Center, et. al. v. U.S. Department of Labor, et. al., the U.S. Court of Appeals for the Fifth Circuit invalidated the U.S. Department of Labor’s (DOL) 2021 Tip Credit Rule (”Rule”) that required employers to pay tipped workers the general minimum wage rate for their time spent performing work that is not part of a tipped occupation, including downtime.
On August 9, 2024, the Illinois State Senate finalized amendments to the Right to Privacy Act. These amendments add additional requirements for employers who use employment eligibility verification programs, including E-Verify.
Several changes impacting employers in jurisdictions across the nation are summarized in our latest blog post.
Illinois recently passed a number of laws that will significantly impact Illinois employers and require employer policies and employee handbooks to be updated and revised. Read about them in our latest blog post.
On August 2, 2024, Governor Pritzker signed Senate Bill 2979 (“SB 2979”) into law, making significant changes to the Illinois Biometric Information Privacy Act (“BIPA”). By way of background, BIPA requires private employers to obtain a written release from employees before collecting their biometric identifiers and biometric information. The potential ramifications for failing to comply with BIPA were extensive for employers: either $1,000.00 for negligent violations of the Act, $5,000.00 for intentional or reckless violations of the Act, or the amount of the actual damages, whichever is greater.
Join us Wednesday, September 4 for our Tenth Annual Labor & Employment Fall Seminar in our Chicago office. Please note that there is limited seating available, but the event will also be livestreamed. Our attorneys will discuss the latest employment law updates, labor law developments, issues related to employee benefits and more. Registration and lunch will take place immediately before the program at 11 AM CT, with the program to follow from 12 PM – 4 PM CT.
Key HR Trends and Latest Legal Developments Impacting All Employers
Join Ryan Young and Maggie Miles as they highlight the ...
Illinois continues to change the landscape for employers, allowing employees more leeway when it comes to the Illinois Human Rights Act (IHRA) and Illinois Personnel Records Review Act (IPRRA).
Following a split between federal district courts (federal judges in Texas and Florida ruled to temporarily block the Federal Trade Commission’s ban while a Pennsylvania court upheld it), a federal district judge in Texas has issued a nationwide injunction setting aside the ban. This means that the FTC’s rule banning most non-compete agreements will not take effect on September 4th as widely reported.
There is much uncertainty about the future of FTC's new rule (the “FTC Rule”) making most non-compete agreements unlawful and barring employers from enforcing past non-compete clauses against nearly all employees and independent contractors.
Today, Governor Pritzker signed Senate Bill 3650 (SB 3650), which amends the Illinois Day and Temporary Labor Services Act (the “Act”) -- AGAIN. This is the 3rd major amendment to the Act in just over a year. The impact of the changes are effective immediately. The latest amendments are primarily focused on clarifying pieces of the massive changes to the staffing industry ushered in last August through House Bill 2862 (HB 2862).
SB 3650 imposes NEW and additional requirements on staffing agencies and third-party user clients who use temporary labor in Illinois, including the ...
On July 25, 2024, California’s Supreme Court issued a highly anticipated ruling that allows app-based rideshare and delivery companies to classify drivers as independent contractors instead of employees, if certain conditions are satisfied.
In the case of Castellanos v. State of California, California’s Supreme Court upheld Proposition 22 (“Prop 22”) as constitutional, holding that Prop 22 does not unlawfully impede on or restrict the state legislature’s ability to enact workers’ compensation laws or otherwise conflict with the state’s constitution.
It seems like a lifetime ago that we first posted on the legalization of cannabis in Illinois and its effect on Illinois employers, way back in November 2019. At that time we provided a detailed overview of the clarifications and updates to the Illinois Cannabis Regulation and Tax Act (“Cannabis Act”) as it relates to use in the workplace. Of course, use of cannabis at the workplace, or use that leads to impairment of an employee while on duty at the workplace, is allowed to be prohibited by the employer, even in a state where it is legal, such as Illinois. That is essentially a common sense no-brainer as it implicates safety concerns, and can be analogized to the use of alcohol at the workplace. But, the question remained to what extent can a positive drug test for cannabis (separate from impairment or use at the workplace) be used to deny or terminate employment, especially when that use was “recreational” and done off duty?
A judge in the U.S. District Court for the Eastern District of Pennsylvania declined on July 23 to enjoin the Federal Trade Commission’s (FTC’s) ban on non-compete agreements. ATS Tree Services, LLC v. FTC, Case No. 2:24-cv-01743-KBH. The court rejected the employer’s argument that the agency lacks authority to establish the rule. The decision conflicts with a ruling by the U.S. District Court for the Northern District of Texas earlier this month, which preliminarily enjoined the rule for the plaintiffs in that case.
Cultivate a thriving culture and drive your business to new heights by transforming your managers into dynamic leaders. Amundsen Davis's Leadership & Management Training Series is perfectly crafted for ambitious mid to senior-level managers from any sector to thrive. Join us this fall for our virtual series meant to help future leaders learn the ins and outs of compliance and management, whether you are developing policies, recruiting new talent, or handling employee issues.
Join us on Wednesday, July 31 at 10AM CT as we present a timely webcast for employers, discussing the rising cost of health care plans.
The webcast will cover:
- Addressing GLP-1 coverage and mental health needs
- Compliance considerations for spousal incentives
- Considerations for alternative contribution structures and wellness incentives
On June 24, 2024, a federal district court judge enjoined parts of the United States Department of Labor’s August 23, 2023 prevailing wage rule that greatly expanded the definition of “construction” on federal prevailing wage projects. Such expansion of what constitutes covered “construction” work on federal prevailing wage projects was never contemplated by the actual federal prevailing law itself (the Davis-Bacon Act or DBA). In a fairly scathing rebuke of the US DOL’s 2023 rule, the court found “…[the US DOL]… usurped Congress’ law-making power and attempted substantive amendments to the DBA. Presidents and their agencies act ultra vires and do violence to the Constitution when they attempt to unilaterally amend Acts of Congress to suit their policy choices…” Interestingly, the court’s decision came before the US Supreme Court eliminated the Chevron deference doctrine.
On July 3, 2024, a federal judge in Texas issued a preliminary injunction that stays the US Federal Trade Commission’s (FTC) near-total ban on non-compete agreements for the named plaintiffs seeking to invalidate the ban which is set to take effect on September 4, 2024.
A federal judge in Texas denied a private company’s request to halt the U.S. Department of Labor’s FIRST PHASE of its new FLSA salary level rule. As you recall, the first phase of the new rule went into effect on July 1, 2024.
The court’s ruling means that the salary level for white-collar FLSA exempt employees must be paid a minimum annualized salary of $43,888 (up from $35,568). That number is then scheduled to go up to $58,656 on January 1, 2025. Raises in the minimum salary threshold will be automatic in subsequent years.
The court denied the company’s injunction request because ...
Earlier today, the Supreme Court issued a highly anticipated ruling that will strip federal administrative agencies of a significant amount of power. In brief, the Supreme Court’s Loper Bright Enters. v. Raimondo decision eliminates the longstanding “Chevron deference” rule which required courts to defer to an administrative agency’s interpretation of otherwise ambiguous statutes, provided that the interpretation is “reasonable.”
Several States and major U.S. Cities, including California, New York City and Seattle, have passed laws aimed at classifying “gig workers” as employees as opposed to independent contractors in recent years. Challenges to these laws are spreading, but finding no sympathy with courts thus far.
In our latest blog we’re providing the most recent updates to employment posters by state. Check out the links to determine which notices apply to you.
On January 1, 2024, we saw the Illinois minimum wage increase from $13.00 to $14.00. The City of Chicago and Cook County are also increasing their minimum wages on July 1, 2024.
The latest round of labor and employment law updates includes several changes impacting employers in jurisdictions across the nation. Here are the summaries of these changes.
On May 26, 2024, the Illinois Legislature passed Senate Bill 3649 – titled the “Worker Freedom of Speech Act.” The legislation prohibits virtually all Illinois employers from discharging or disciplining any employee, or from threatening to take such actions against any employee, who refuses to attend meetings related to unions (aka “the Captive Audience Meeting”). In short, employers cannot require or give the impression to anyone that they are compelling workers to attend meetings that touch on labor unions. While the restrictions cover anything “political” or “religious” in nature (and union issues fall under “political”), the true intent is to shut up employers while union representatives are already legally allowed to say just about everything and anything to dupe the worker into “signing up” with a labor union. To be more clear, the legislation specifically aims to prevent employers from educating employees on the pros and cons of union membership in general or in a particular union or labor organization. Once signed by the governor (he’ll sign it), it will become effective.
With the summer travel season around the corner, we are fielding many travel and visa application questions. Here are answers to your most frequently asked questions.
Join Sara Zorich, Karen Tobin and Alice Lin on June 11 at 10 AM as they discuss certain employment, corporate and tax considerations employers need to know about in order to effectively manage workers in multiple locations without exposing themselves to liability.
The first—and a significant—amendment to the Illinois Biometric Privacy Act (BIPA) has just passed both chambers of the Illinois legislature and is headed to Governor Pritzker for approval. SB2979 amends BIPA to address the troubling trend of litigants seeking per-scan damages under BIPA, where a handful of enterprising attorneys have, and continue to file, single-plaintiff cases seeking damages on a per-scan basis that exceed six-figures for a single individual.
On April 22, 2024, the Centers for Medicare & Medicaid Services (CMS) finalized minimum staffing requirements for nursing homes that participate in Medicare and Medicaid. As we noted previously, the rule was announced on September 1, 2023 and was open for public comment until November 6, 2023. The rule was officially published on May 10, 2024. Although the rule becomes effective on June 21, 2024, implementation is phased in over the next five years.
On May 6, 2024, California’s Supreme Court, in a rare and surprising “employer friendly” decision, held that an employer can avoid penalties under California’s wage statement law, Cal. Lab. Code § 226, if it reasonably and in good faith believed it was providing a complete and accurate wage statement in compliance with the requirements of Cal. Lab. Code § 226(a).
On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on Harassment in the Workplace, which goes into effect immediately. For the past five years, over one-third of the charges of employment discrimination received by the EEOC included an allegation of unlawful harassment based on race, sex, disability, or another statutorily protected characteristic. Employers need to be aware of the EEOC’s new enforcement guidance because it expands the scope of conduct that constitutes unlawful “harassment” in the workplace which violates Title VII of the Civil Rights Act of 1964 (Title VII).
In the latest round of state employment law updates family leave and religious accommodations are in the spotlight. We also highlight wage and hour laws relating to compensable time. Read the full article to see if any of these updates apply to you.
Captive audience meetings are on-the-clock meetings (employee attendance is often mandatory) where employers express an opinion on "religious or political matters” – including whether or not employees should join or support any labor organization.
The Federal Trade Commission (FTC) voted 3-2 on April 23 to issue its final noncompete rule. The Rule becomes effective in 120 days. However, it already has been challenged in federal court in the State of Texas, and more suits are anticipated. There are serious concerns as to whether the FTC has the authority to regulate this area of the law.
On April 23, 2024, the United States Department of Labor (DOL) announced its final rule, amending the minimum salary levels necessary for employees to be considered exempt from the overtime requirements under the Fair Labor Standards Act (FLSA) “White Collar” (executive, administrative, and professional) exemptions. The final rule is set to take effect on July 1, 2024.
- Higher Salary Threshold for OT Exempt Employees… The annualized salary level for anyone classified as exempt from OT pursuant to the FLSA’s white-collar exemptions (executive, administrative, professional) must be no less than $43,888 ($844/week) by July 1, 2024 and must then be no less than $58,656 ($1,128/week) by January 1, 2025. Automatic escalators are now built into establishing minimum salary thresholds to meet the OT exemption for white-collar salary exempt workers.
On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) published the final rule and interpretive guidance for implementation of the Pregnant Workers Fairness Act (PWFA). The final rule becomes effective June 18, 2024.
Join Julie Proscia and Sara Zorich on April 24 at 10 AM as they discuss the trends of these new pay transparency laws.
In August 2023, the US Department of Labor (DOL) announced a proposed rule that became final last week, giving employees the ability to designate essentially any third-party as their “authorized representative” during OSHA workplace safety inspections --- even union reps and community organizers. This rule goes into effect on May 31, 2024.
As legalization of cannabis has spread, profits have grown in the 25 states that allow for the retail sale of cannabis for recreational use, and labor unions have found great opportunity for getting a lift from the cannabis industry -- no pun intended. Eight of those 25 states have passed legislation that encourage or even require cannabis industry employers to enter into labor peace agreements (LPA), often referred to as “neutrality agreements,” with labor unions, as a condition of obtaining or renewing a cultivation or dispensary license.
The National Labor Relations Board (NLRB) issued a controversial rule change to its longstanding “joint employer rule” in October of 2023, which dramatically lowered the thresholds by which a company could be deemed jointly liable and responsible under the National Labor Relations Act (NLRA) for another company’s unfair labor practices or collective bargaining obligations. In effect, the new rule could make unrelated, separate companies jointly responsible for violations of another employer under the NLRA.
The Illinois’ Genetic Information Privacy Act (“GIPA”) has been Illinois law for over twenty years. Yet, only in the last year or two has there been an explosion of lawsuits being filed against companies in various industries, all alleging violations of the statute.
CAL/OSHA recently issued guidance on its Workplace Violence Prevention mandates that were created and implemented on September 30, 2023 when Governor Newsom signed Senate Bill 553 (SB 553) into law and which go into effect on July 1, 2024.
In a case filed in the Northern District of Illinois (Staffing Services Association of IL, et. al. vs. Jane Flanagan, Director of the IL Department of Labor), a federal district court granted plaintiffs’ request for injunctive relief thereby preventing the IL Department of Labor (IDOL) from enforcing a key provision contained in the 2023 amendments to the IL Day & Temporary Labor Services Act (IDTLSA). While the plaintiffs were not successful in their attempt to block other key sections of the amendments involving “notifying temporary workers of labor disputes” and “interested parties having standing to pursue private lawsuits on behalf of workers,” the court blocked the “equivalent benefits” piece to the “Equal Pay for Equal Work” section of the law.
The recently overhauled paid leave ordinances in Illinois include: Illinois Paid Leave For All Workers Act (effective January 1, 2024), Cook County Paid Leave (effective February 1, 2024) and the City of Chicago Paid Leave (effective July 1, 2024)/City of Chicago Sick Leave (amended) (effective July 1, 2024). Compliance is going to require more than an updated leave policy, so it is important to review your policies and practices to make sure you are compliant.
Join Sara Zorich and Beverly Alfon as they provide a timely webcast, where attendees will learn about this new law, how to ...
Conscientious objection in health care is the refusal of a health care professional to provide or participate in the delivery of a legal, medically appropriate health care service to a patient because of personal beliefs. Federal conscience rights are contained in various federal statutes and regulations -- the Church Amendments, Section 45 of the Public Health Act, the Weldon Amendment, the Affordable Care Act and Medicare and Medicaid regulations – that collectively protect the right of health care providers to object to performing certain medical procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions.
California’s equal pay data reporting law applies to private companies that have at least 100 employees nationwide on payroll and at least one California employee. The reporting deadline for the 2023 reporting year is May 8, 2024.
On Friday, February 9, 2024, Illinois’ General Assembly introduced legislation to eliminate the tip credit in Illinois by January 1, 2025. If passed, ALL Illinois employers will be required to pay ALL their employees at least the applicable minimum wage, including employees who earn or receive tips and gratuities. This would mean that Illinois employers would no longer be able to credit the tips and gratuities their tipped employees receive towards paying them minimum wage starting on January 1, 2025.
On January 18, 2024, the City of Chicago Office of Labor Standards (OLS) issued proposed rules, FAQs, and a Flyer for its New Paid Leave and Paid Sick and Safe Leave Ordinance (Ordinance) effective July 1, 2024.
California Assembly Bill 1076, passed last fall, added a new Business & Professions Code §16600.1. By February 14, 2024, California employers must notify in writing current and certain former employees that any noncompete agreement or clause to which they may be subject is void (unless it falls within one of the limited statutory exceptions). It also applies to customer non-solicitation requirements.
For H-1B visa holders, the logistics of traveling home for a wedding can be almost as challenging to plan as the wedding.
A man who traveled to India for a wedding had to remain there for weeks to get a visa to return to the US. He had to apply for the visa in India, have an interview, and then wait 3 weeks for the consulate to vet his application and return the passport with the visa foil. The waiting time caused him to postpone a major business deal.
Consulate and embassy waiting times have ballooned to eight, nine, or even twelve months in some places including Mexico and Canada – and that’s ...
Employers in each of the below states must be aware of new posters and ensure they are displayed in the workplace -- including, to the extent applicable, remote workplaces. Links to posters are provided below.
Alaska
Arizona
Flagstaff, Arizona
Arkansas
California
2023 is now “in the books” and organized labor is likely seething at seeing their numbers drop -- once again. Despite the media headlines in 2023 about union organizing drives, strikes and “wins” at the negotiating table for a few notable companies, workers represented by a labor union dropped to an all-time low for the second straight year.
On January 23, 2024, the U.S. Bureau of Labor Statistics (BLS) released figures showing that the percentage of workers who were part of a labor union, dropped to a new low of 10% in 2023 (down from the previous record low of 10.1% in 2022). Among ...
On January 10, 2024, the U.S. Department of Labor (DOL) published its Final Rule on the standard for determining who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule is set to take effect on March 11, 2024.
Background
The FLSA provides wage and hour protections to “employees” that do not apply to “independent contractors,” including minimum wage and overtime minimums. Accordingly, misclassification of workers has been and continues to be a major focus of the DOL. In light of the potential economic impact that changes to ...
Several new changes impacting Colorado’s Equal Pay for Equal Work Act (EPEWA) took effect on January 1, 2024. Employers with at least one employee located and working in Colorado must now comply with certain posting and notice requirements for all Colorado based employment opportunities, including for promotion opportunities. The EPEWA requirements apply only to an employer’s Colorado based employees.
Several changes impacting employers in jurisdictions across the nation are summarized below. Read our blog below to determine if any of these laws apply to you.
California
- California’s statewide minimum wage increased to $16.00 per hour for all employers on January 1, 2024. Some cities and counties in California have a local minimum wage that is higher than the state rate.
Illinois
- Effective 11/17/2023 -- On November 17, 2023, Governor Pritzker Signed H.B. 3641 into law which, among other things, delays implementation of the equal pay for equal work mandate until April 1, 2024. IL ...
Amundsen Davis invites you to a webcast event on February 6, 2024 at 8:30AM CT. Join attorneys from our Labor, Employment, Benefits & Immigration, OSHA and Construction service groups as they highlight key issues impacting the construction industry in 2024.
Topics to be discussed include:
- Davis-Bacon and Prevailing Wage Updates
- Inflation Reduction Act Projects
- OSHA Updates for 2024
- Updates to Construction Contracts
Who should attend? Construction Industry CEOs, COOs, CFOs, Accountants, Human Resource Managers, Safety Consultants, and Risk Managers.
OSHA recently announced a significant change in its head protection policy, and is transitioning from traditional hard hats to safety helmets for its employees. This move is more than just an internal policy shift, and signals a broader push that will soon affect all employers whose employees are required to wear head protection, likely leading to citations when employees wear traditional hard hats in lieu of the helmets—which OSHA specifically notes can fall off, do not protect the side of the head, and keep heat trapped inside.
While the announcement, on its face, focuses on OSHA ...
As we wind down 2023, your company may be sharing with its employees either through business closing periods or end-of-the-year bonuses. Employers must be cognizant that these generous gestures may carry compliance obligations for the business.
BONUSES
Employers must be careful when paying out bonuses at the end of the year to non-exempt employees. As with other bonuses, a holiday bonus must be included in overtime calculations for nonexempt employees unless it is completely discretionary or is a gift. If a bonus is promised or expected or is dependent on the quality, quantity or ...
With the January 1, 2024, effective date of the Illinois Paid Leave for All Workers Act (IPLAWA) quickly approaching, employers need to ensure they are analyzing their existing paid leave policies to determine what changes need to be made before the end of 2023.
The Illinois Department of Labor (IDOL) has been providing more information regarding the “rules” for the IPLAWA. The IDOL has published additional guidance through FAQs --- which are not law, but should nonetheless be taken into consideration and reviewed carefully when finalizing paid leave policies for the purpose of ...
With the advent of the federal Corporate Transparency Act (“CTA”), which requires filings by most newly formed and smaller existing corporations, limited liability companies, limited partnerships, or other similar entities created by a filing with the Secretary of State or other similar office, businesses should be aware of the upcoming compliance changes going into effect on January 1, 2024.
Join corporate attorney Karen Tobin for a timely discussion on the changes to filing requirements going into effect at the beginning of 2024.
Early in the New Year we often see employees switching jobs, which can trigger disputes over restrictive covenants in their employment agreements. As 2023 draws to a close, here are some things to keep in mind to protect your company, its customers, and its information against unfair competition from departing employees:
Assume the worst.
We tend to assume people will comply with their contractual obligations. Employers should not assume a departing employee will comply with a restrictive covenant. Some employees forget they even have an employment agreement. Some think the ...
Facing a stubborn backlog and an influx of immigrants seeking refuge, United States Citizenship and Immigration Services (USCIS) proposed a rule featuring a new fee schedule in January 2023. The proposed fee schedule includes sharp increases in fees for H-1B visas, green cards, and naturalization.
USCIS has deferred the final ruling on the fees until early 2024. The steep increases are worthy of your attention now, by filing for your green card or naturalization before the fees rise.
Why Immigration Fees Are Rising
USCIS’s current fees went into effect on December 23, 2016. Fees ...
Certain states are prohibiting employers from entering into settlement agreements, while others have reduced family-leave insurance rates and prohibited employers from cooperating in any inquiry or investigation into an employee and abortion-related services. Read the full article to determine whether any of these laws apply to you.
CALIFORNIA
Under A.B. 352, employers are prohibited from disclosing certain information to any person, agency, or department from another state, if the disclosure would identify or is related to a person seeking or obtaining an abortion (or ...
On November 9, 2023, the Chicago City Council passed the Paid Leave and Paid Sick and Safe Leave Ordinance. Beginning on January 1, 2024, the new ordinance requires that all employers, with one or more employee, provide employees with 10 paid leave days. The new law is not only applicable to employers that are located in Chicago but also covers any employee that spends two or more hours performing work or traveling for work in the city.
Join Julie Proscia and Heather Bailey for a timely webcast on Wednesday, November 29 at 1PM CT, offering a clarifying look at the confusing new law and what ...
Happy holidays…Not really. On November 9, 2023, the Chicago City Council passed the Paid Leave and Paid Sick and Safe Leave Ordinance. The new ordinance creates a confusing set of requirements for employers to navigate. Beginning on January 1, 2024, the ordinance requires that all employers, with one or more employee, provide employees with 10 paid leave days. The new law is not only applicable to employers that are located in Chicago but also covers any employee that spends two or more hours performing work or traveling for work in the city. The traveling time must be compensable ...
The Wisconsin Fair Employment Act (WFEA) prohibits covered employers from discriminating against employees based on disability and requires that employers reasonably accommodate an individual with a known disability. Of course, not all disabilities are “known” – they may not be obvious or observable to an employer and they may not be clearly disclosed by the employee. So when does the duty to accommodate on the part of the employer trigger? What of the employee who complains of physical ailments and requests an accommodation but does not submit documentation from his or her physician?
On September 29 the EEOC issued a press release declaring it filed “143 new employment discrimination lawsuits in fiscal year 2023, noting that is more than a 50% increase over fiscal year 2022 suit filings.” The release also emphasized that 25 of the cases were systemic prosecutions, more than double the number of such cases in the past 3 years.
Today the National Labor Relations Board (NLRB) officially published its NEW Joint Employer Rule, that lowers the standard to an unprecedented level whereby an entity may be deemed jointly liable and responsible under the National Labor Relations Act (NLRA) for another entity’s unfair labor practices or collective bargaining obligations.
There have been several recent changes impacting employers in jurisdictions across the nation. Read the post to see if any of them apply to you.
On August 29, 2023, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) released more guidance and proposed rules on key provisions in the Inflation Reduction Act (IRA) that requires employers to meet certain labor mandates involving apprenticeship mandates, prevailing wage requirements and possible forced unionization on green energy construction projects.
With the January 1, 2024, effective date of the Illinois Paid Leave for All Workers Act (IPLAWA) quickly approaching, employers need to ensure they are analyzing their existing paid leave policies to determine what changes need to be made before the end of 2023.
On Friday, October 6, 2023, Chicago’s City Council passed the “One Fair Wage” Ordinance (“Ordinance”), which gradually phases out Chicago’s “tip credit” over a five-year period until it is completely eliminated by June 30, 2028. At which point, all tipped employees working in the City of Chicago will earn the same hourly minimum wage rate as non-tipped employees. Meaning, on and after July 1, 2028, Chicago employers will no longer be able to credit an employee’s earned tips and gratuities towards their hourly wage rate and will be required to pay all employees, including tipped employees, Chicago’s minimum wage rate.
In the immigration community, autumn brings a new-year sense of renewal. A new US government fiscal year beginning October 1 means a fresh start to the annual allocation of green cards for those looking to apply. But application backlogs which have grown for countries like mainland China and India have tempered that October optimism. A new wrinkle added to the application process this year has made it trickier.
On September 30, 2023, California enacted Senate Bill No. 553 (“S.B. 553”), which requires covered California employers to adopt a comprehensive workplace violence prevention plan by July 1, 2024. These plans may be stand-alone documents or incorporated as new sections of the employer’s Injury and Illness Prevention Program (IIPP).
On June 9, 2023, Governor Pritzker signed into law HB 3491 which amends the Illinois Prevailing Wage Act (IPWA) to provide workers with the rights against general contractors and sub-contractors. Effective January 1, 2024, any worker, laborer or mechanic performing construction work on a prevailing wage project can file a private cause of action against the employer for any differential between what was paid and what was required to be paid to them pursuant to the IPWA. Sounds reasonable, right? Of course.
Unsurprisingly, California is yet again changing its already very employee friendly employment laws. Currently, California leads the nation with its employee friendly laws, though states like Illinois are quickly catching up. The California Legislature’s latest move is a first for any US state by banning “caste” discrimination in the workplace under its civil rights and employment discrimination laws. Seattle passed a similar law in February.
On July 28, 2023, Governor Pritzker signed into law a number of amendments to Illinois’ Prevailing Wage Act (IPWA), including HB 3370, which amends the IPWA to include “power washing.” Specifically, the term “Public works” under the IPWA is now revised.
Employers in Indiana, Illinois and Wisconsin must now accommodate an employee’s work-schedule “if an employee's disability substantially interferes with his ability to travel to and from work … if commuting to work is a prerequisite to an essential job function, including attendance in the workplace, and if the accommodation is reasonable under all the circumstances.” Equal Emp. Opportunity Commission v. Charter Communications, LLC, 75 F.4th 729, 734 (7th Cir. 2023).
Hold onto your hard hat! What you thought you knew about federal Davis-Bacon prevailing wage law is changing --- substantially changing decades of well-established rules, precedent and interpretations as to the applicability and scope of federal prevailing wage laws to construction projects and how contractors must comply with the legal mandates. Remember, federally funded projects that involve construction work in excess of $2,000, will trigger Davis-Bacon obligations.
OSHA has been particularly busy and aggressive lately, making good on Biden Administration promises and talking points—hiring more inspectors, appointing new administrators, conducting more inspections, aggressively issuing citations, adopting and expanding emphasis programs, reviving old rules, and expanding existing rules.
On September 1st the Centers for Medicare & Medicaid Services (CMS) announced a proposed rule that would require nursing homes that participate in Medicare and Medicaid to comply with a first-ever federal staffing mandate. If adopted, the requirements would be phased in over two to five years. The comment period for the proposed rule closes November 6.
Entering 2023, the union membership rate dropped to a new historic low of 10.1%. Among private sector workers, the numbers were even more bleak for unions: just 6% of the overall private sector workforce is now unionized (compared to 33% in the public sector). The membership rate actually dipped in 2022 in both the private and public sectors. Organized labor has been in full panic mode and seeking assistance from its allies in D.C. while trying to organize as many young adults as possible working in coffee shops and cannabis stores.
On July 28, 2023, Governor Pritzker signed into law a number of amendments to the Illinois Prevailing Wage Act (IPWA), including HB 3792, which amends the IPWA to include, among other things, all work related to fixtures or permanent attachments affixed to traffic light and street light poles in the Act’s definition of the term “Public works” --- regardless if public funds are used or not.
This summer seemed to fly by as quickly as the Illinois Legislature and Governor J.B. Pritzker enacted a dizzying slew of more new employment laws between the months of June and August. These changes are sweeping and require your attention now.
The current employment market is placing incredible stress on businesses, many of which are struggling to find enough employees to simply cover shifts. Pay increases and higher recruiting costs, consequently, continue to rise. On top of these challenges, inflation and other market pressures have resulted in higher operating costs, compounding the impact to the bottom line.
Today, the National Labor Relations Board (NLRB) just handed big labor a major assist when it comes to union organizing. In Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters 31-CA-238239, 372 NLRB 130, the NLRB ruled that an employer must essentially recognize a labor union claiming to represent a majority of its employees in an appropriate unit --- unless the employer promptly files a petition (an RM Petition) to test the union’s majority status or the appropriateness of the unit. The NLRB went on to explain that absent unforeseen ...
On June 30, 2023, Governor Pritzker signed HB 3351 into law, which amends the Illinois Power Agency Act (IPAA) to require certain projects under the Illinois Solar For All Program to be subject to the prevailing wage requirements of the Illinois Prevailing Wage Act (IPWA). Effective June 30, 2023, all workers performing work on such projects must be paid in accordance with the IPWA. Of course, all owners, developers and contractors must become intimately familiar with the IPWA mandates. Since such work has been historically not covered by the IPWA, there is likely a giant learning curve. The IPWA sets forth very detailed and nuanced requirements well beyond simply paying workers in accordance with the local area wide collective bargaining agreement.
The possible uses of artificial intelligence (AI) have received much coverage lately. Now the risks of using AI to assist in the hiring process are in the spotlight since the EEOC just settled its first suit alleging discrimination in hiring through the use of AI.
On Wednesday July 19, 2023, the Chicago City Council introduced legislation to eliminate the city’s “tip credit” over a two-year period (if passed), in an effort to raise the city’s current hourly minimum wage rate for tipped employees to equal the city’s hourly minimum wage rate for non-tipped employees.
On August 4, 2023, Governor Pritzker signed House Bill 2862 into law amending Illinois’ Day and Temporary Labor Services Act. This game changing legislation passed by State Legislature affects Illinois’ Staffing Industry as a whole and ALL EMPLOYERS that utilize temporary labor in Illinois. For more information about this new legislation, see our previous blog on House Bill 2862.
An employee complains to human resources, “I am a hamster from Venus and filing unfair labor practice charge because the pay policy of paying bi-weekly is chilling my Section 7 rights!” No, this is not a bizarre scene out of a Monty Python movie but now the potential absurd reality in workplaces across the country. Reality, reasonableness…. who needs them? Not the Biden NLRB.
Illinois employers need to be aware of additional notice and distribution requirements under the recently-signed House Bill 3733 (the “Bill”), which will become effective January 1, 2024 – particularly staffing agencies and employers with remote workers and/or workers who do not regularly report to a specific jobsite.
The U.S. Department of Labor has announced a notice of proposed rulemaking to clarify the personal protective equipment (PPE) standard for the construction industry. In its press release, the Department argued that the current standard does not state clearly that PPE must fit each affected employee properly. The proposed change would clarify that PPE must fit each employee properly to protect them from occupational hazards. The Department went on to state that there have long been safety concerns regarding the failure of standard-sized PPE to protect physically smaller construction workers (especially women) properly.
Many states are prohibiting employers from entering into non-competes with their employees. Read the full article to determine whether any of these new laws apply to you!
On August 1st, United States Citizenship and Immigration Services (USCIS) will publish the new Form I-9 for employers to use to confirm a new employee’s authorization to work in the United States. Employers are encouraged to begin using the new form on August 1st for all new hires, but may use the current form (version 10/21/19) through October 31st. Starting November 1, only the new Form I-9 may be used for newly hired employees and reverifications. The new Form I-9 will be a single page and will include a checkbox for employers to indicate they examined Form I-9 documentation remotely under a new Department of Homeland Security (DHS)-authorized alternative procedure (see further information below). USCIS is moving the Preparer/Translator Certification and the Reverification/Rehire sections to stand alone documents. Thus, if either of those situations apply, employers must complete a separate document and maintain it with the Form I-9.
Resurrecting a rule that it attempted—but failed—to implement years ago, the Department of Labor has announced a new rule that will require certain employers in high-hazard industries to electronically submit injury and illness information. The rule applies to establishments with 100 or more employees in certain high-hazard industries including construction, manufacturing, agriculture, transportation, warehousing, and utilities.
On July 17, 2023 in Adolph v. Uber Techs., Inc., No. S274671, 2023 WL 4553702 (Cal. July 17, 2023), the California Supreme Court held that an individual can maintain a class action in court under the Private Attorneys General Act (PAGA) even when that individual’s California Labor Code claims are sent to arbitration. This decision breaks away from the ruling set forth in the Supreme Court Case – Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. [142 S.Ct. 1906], 213 L.Ed.2d 179.
OSHA is launching a new three-year initiative it claims is intended to prevent workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments. High-risk retail establishments covered by the program include:
Yep. You read that right. Not really sure how else to describe this little nugget. As Illinois continues to do all it can to help labor organizations, the latest assist is a real stomach turner.
In a recent decision, Mallory v. Norfolk Southern Railway Co., the U.S. Supreme Court opened the door for companies to face lawsuits in the state where they have registered to do business. The ruling stems from a case involving a Virginia-based former employee’s lawsuit against Norfolk Southern in Pennsylvania, despite the alleged injuries occurring in other states. The Court’s majority decision upheld the notion of “registration by consent” laws, allowing states to assert jurisdiction over out-of-state companies based on corporate registration.
Bias, and particularly unconscious bias, is tricky. It is present in the most well intentioned of individuals and can be challenging to identify and therefore manage. However, just because it is challenging to identify does not make it impossible, and it is important to fight. Identifying areas for potential bias in hiring and the employment relationship will not only greatly increase your candidate pool and support retention but will also reduce your legal exposure.
In Groff v. DeJoy, Postmaster General (No. 22-174, June 29, 2023 Slip Opinion), the US Supreme Court held that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. The Court opined that when courts review religious accommodations in the future they must take into account all relevant factors in the case, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.
With the rise of active shooters in workplaces and schools there is an ever increasing concern over workplace violence and related employee mental issues. When addressing these concerns a company is faced with a complicated legal matrix to navigate. Companies must closely analyze and comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), and state workers’ compensation laws, among others.
Illinois temporary staffing agencies are already highly regulated under the Illinois Day and Temporary Labor Services Act (the “Act”). As it currently stands, the Act requires temporary staffing agencies to register with the Illinois Department of Labor (IDOL), which requires proof of, for example, workers compensation insurance, as well as identification of client and employee data. The Act also currently restricts fees that temporary staffing agencies may charge their clients for converting the agency’s staff to permanent employees, and provides many additional safeguards pertaining to temporary workers’ pay and other terms and conditions of employment.
The final phase of the green card application involves an Adjustment of Status (AOS). While their AOS is pending, applicants cannot leave the US without permission, a document called Advance Parole.
Cyber fraud has been around as long as the internet itself, but cyber criminals are more sophisticated than ever. While any experienced email user can spot a phony “Nigerian Prince” a mile away, even the most vigilant businesses are vulnerable to business email compromise (called “BEC”) attacks by the new breed of internet fraudsters.
Effective June 1, 2023, the U.S. Department of Transportation (DOT) allows regulated employers to use oral fluid testing as part of their drug testing programs. The change is pursuant to a final rule that was published on May 2, 2023. However, practically speaking, oral fluid testing cannot yet be implemented because, as of June 1, 2023, the Department of Health and Human Services (DHHS) had not yet certified any laboratories to perform the testing – and two must be certified for any testing to be performed.
As part of his two-year spending plan, Wisconsin Governor Tony Evers has proposed mandating 12 weeks of paid family and medical leave for many private and public sector workers by January 1, 2025. This proposal, if passed, would represent a marked change from existing state and federal laws which provide for job-protected leave on an unpaid basis to certain eligible employees of larger employers.
On January 1, 2023, we saw the Illinois minimum wage increase from $12.00 to $13.00. The City of Chicago and Cook County are also increasing their set minimum wages on July 1, 2023.
Following on the proposed rule of the FTC on non-competes, another federal threat to non-competes has emerged, this time from the National Labor Relations Board (NLRB).
On June 1, 2023, the Supreme Court of the United States (SCOTUS) held that federal law does not preempt the right of an employer to sue a striking union for damages in state court if the union failed to take reasonable precautions to protect the employer against foreseeable, aggravated, and imminent danger.
It is more and more common for employers to hear employee allegations of a “hostile work environment,” “harassment” or a “toxic workplace.” In some instances current or former employees are using those terms as a defense mechanism when their performance is being criticized or they are facing discipline or discharge. Often the terms are used to describe the behavior of supervisors or co-workers. It is important for employers to properly assess such allegations and determine whether there is the potential for employer liability.
Florida recently enacted significant legislation relating to employee immigration verification. Senate Bill 1718 (the “Bill”), which Gov. Ron DeSantis signed into law on May 10, 2023, makes using E-Verify mandatory for any private employer with 25 or more employees, imposes penalties for those employing undocumented individuals, and enhances penalties for human trafficking. Previously, only Florida’s public sector employers were required to use E-Verify. Effective July 1, 2023, all private sector employers in Florida with 25 or more employees must use E-Verify to confirm the work authorization status of newly hired employees.
While incorporating diversity, equity and inclusion (DEI) into the corporate culture is not something that is new, it is something that has become increasingly important and complex. Activist consumers are leveraging their purchasing power, public and private contractors are requiring DEI efforts, and an increasing amount of legislation is being promulgated to govern employment practices related to compensation, hiring and employment. This trifecta makes navigating internal and external pressures challenging. In order to successfully navigate these waters, more and more companies are conducting internal DEI audits to analyze their culture, processes and procedures and implement targeted improvements when problems are identified. Although conducting internal DEI audits is incredibly important to building an inclusive culture, doing so without the aid of counsel is fraught with risk and can result in a legal nightmare.
The Chicago Human Rights Ordinance makes it a civil rights violation “[f]or any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment.” Municipal Code of Chicago, 6-010-040. As we previously discussed in a blog, last year, Chicago’s City Council amended the Chicago Human Rights Ordinance by expanding the definition of sexual harassment and adding various requirements related to harassment prevention training, policy, postings and recordkeeping.
Join Amundsen Davis attorneys Peter Hansen and Laurie Meyer for a webcast on May 31 at 12:00 PM CT to discuss recent changes to, and a comparison of, Illinois and Wisconsin employment laws, along with recent developments in Federal employment laws.
Several recent changes impacting employers in jurisdictions across the nation are summarized below. Many states and municipalities have increased their hourly minimum wage rates, some to as high as $18.07 per hour. Read the full article to determine whether any of these changes apply to you!
On May 1, 2023, the National Labor Relations Board (“NLRB” or “Board”) issued a decision, Lion Elastomers LLC, that provides employees with extensive cover for inappropriate workplace behavior under the guise of the National Labor Relations Act (the “Act”). Moving forward, employers must carefully scrutinize the environment and circumstances under which bad employee behavior occurs and analyze whether levying consequences for such behavior could land it in hot water under the Act.
Last month, the Illinois Department of Labor (“IDOL”) fairly quietly released amended regulations affecting the interpretation and enforcement of the Illinois Wage Payment and Collection Act (“IWPCA”). A complete listing of the amendments appears on the Illinois Secretary of State website. (starting at p.5406).
There seems to be an almost daily litany of layoffs by large corporations that instantly become media fodder. For example, McDonald’s recent layoff, widely reported to have impacted hundreds of white collar employees, comes on the heels of mass layoffs by Amazon, Meta, and Disney. Given this climate, it is best for employers to take a look at their policies and procedures for terminating employees, whether individually or as part of a larger reduction in force to ensure compliance with state and federal law.
The National Labor Relations Board, as currently constituted, continues its efforts to kneecap employers who dare to resist unionization efforts. We have already seen NLRB General Counsel, Jennifer Abruzzo’s, scorched-earth approach to promote unionization through enforcement activities targeting employer conduct that for decades has been perfectly lawful, and then suddenly finding the same conduct to be unlawful and unfair labor practices (including attempting to remove employers’ rights to require a secret-ballot election, instead of accepting authorization cards, to determine union support by a majority of employees; and making it unlawful for employers to hold group meetings with employees during union organizing campaigns to educate employees about the union and the collective bargaining process). Now, not only is conduct that previously has been considered lawful been deemed unlawful, the NLRB is promoting enhanced penalties and damages for employers who commit unfair labor practices.
Proactive employers are well-versed in safeguarding against workplace discrimination based on race, gender, religion, age, or disability. But, what about lesser known forms of prohibited workplace discrimination like genetic information discrimination? The Federal Genetic Information Nondiscrimination Act (GINA) and its Illinois counterpart, Genetic Information Protection Act (GIPA), both prohibit employers from disclosing genetic information or basing any employment decision on an employee’s genetic information. Both statutes contain private rights of action for violations. GIPA, however, contains a statutory damages provision that provides for penalties of $2,500 for each negligent violation, and $15,000 for each intentional or reckless violation. With these severe consequences for non-compliance in mind, we answer some questions on these statutes.
A prior article reviewed a decision of the Wisconsin Supreme Court which dealt with the relationship between the workplace and an applicant’s prior domestic violence convictions (Cree, Inc., v. LIRC). This article will discuss a case which followed later in 2022, a decision of the Wisconsin Court of Appeals in Vega v. LIRC, et al., 2021 AP 24, Petition for Review Denied, which dealt with whether an employee’s admission to his employer of the facts underlying two felony deferred prosecution agreements for sexual assault could serve as an independent basis to terminate the employment of the employee.
In a rare win for employers, on March 23, 2023 the Illinois Supreme Court issued its decision in Walton v. Roosevelt University, affirming dismissal of claims brought under the Biometric Information Privacy Act (BIPA) by a union worker trying to pursue a class action lawsuit against his prior employer due to the employer requiring employees to enroll a scan of their hand geometry onto a biometric timekeeping device in order to clock in and out for work. Specifically, the Court held that federal labor law -- Section 301 of the Labor Management Relations Act (LMRA) -- preempts BIPA claims brought by union workers where their underlying collective bargaining agreement (CBA) contains a broad management rights provision. The ruling requires workers, whose employment is controlled by a CBA containing a broad management rights clause (which is common), to proceed with BIPA claims through the collective bargaining process; not through the courts. This decision serves as a major blow to those pursuing class action BIPA lawsuits where a union contract is in place. To be more clear, this decision can effectively shut down and close out BIPA lawsuits and the dreaded class action lawsuit.
Check out some of the most recent local employment law updates in Illinois, Colorado, Maryland, Michigan, New York and Pennsylvania regarding wages and paid leave.
On February 9, 2023 the Wage and Hour Division of the United States Department of Labor (WHD) issued a Field Assistance Bulletin (FAB) providing guidance to WHD field staff regarding proper compensation under the Fair Labor Standards Act (FLSA) and proper leave under the Family and Medical Leave Act (FMLA), for employees who telework or work away from an employer’s facility.
The Federal Trade Commission (FTC) voted to extend the public comment period for its proposed new rule that would ban certain employee non-competes. The new deadline for public comments on the proposed rule is April 19, 2023. The previous deadline was March 20th.
Most employers with 50+ employees are aware that under the federal FMLA, eligible employees may, for qualifying reasons, take up to 12 weeks of unpaid leave during a 12-month period. Employers are also aware that employees can, under certain circumstances, take this leave on an “intermittent” or “reduced schedule” basis. For instance, an eligible employee might work four rather than eight hours per day for many weeks or months for FMLA-qualifying reasons. In those cases, an employer might believe that since 12 weeks multiplied by 40 hours per week equals 480 hours, the maximum amount of FMLA leave any employee can take in a 12-month period is 480 hours.
Although the Wisconsin Fair Employment Act (WFEA) has included arrest and conviction record as a category protected from discrimination since 1977, a decision of the Wisconsin Supreme Court last year demonstrates that the contours of protection under the law are still being developed. In general, the law requires any Wisconsin employer (with some limited exceptions such as schools dealing with unpardoned felons) to establish that a “substantial relationship” exists between the circumstances of the arrest or charge (in order to suspend an employee) or the conviction (to refuse hiring or terminate employment).
It is almost certain that Governor Pritzker will sign the Paid Leave for All Workers Act (Act) passed on January 10, 2023. The Act is littered with potential pitfalls for employer policies and practices regarding attendance, evaluations/reviews and discipline.
Dust off your severance agreement template, again. This applies to all private employers – whether you have a unionized workforce or not.
Right on the heels of the Illinois Supreme Court’s decision in Tims, the Court delivered yet another crushing blow to Illinois businesses in Cothron v. White Castle System, Inc. Answering the crucial question of when a Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA), claim accrues for the collection and disclosure of biometric “identifiers,” the razor thin majority found that a separate claim accrues “each time a private entity scans or transmits” an individual’s biometrics.
On February 15, 2023, in Chamber of Commerce of the United States of America et al. v. Bonta et al., a panel of the U.S. Court of Appeals for the Ninth Circuit held that the Federal Arbitration Act (“FAA”) preempts a state rule that discriminates against the formation of an arbitration agreement, even if that agreement is ultimately enforceable. The law at issue, California Assembly Bill 51 (“AB 51”), made it a criminal offense for an employer to require an existing employee or an applicant for employment to consent to arbitrate specified claims as a condition of employment. The court concluded that because the FAA preempts AB 51, AB 51 cannot be enforced.
Check out some of the most recent state law updates on employee rights, leave and minimum wage.
A remote employee, Karlee Besse of Reach CPA, an accounting firm based in British Columbia, was terminated for theft of time, and then subsequently ordered to pay back approximately $2,750 to the firm for misrepresented wages discovered by time-tracking software. With the growing number of remote workers and the increased usage of productivity monitoring software, this case is an interesting study in the newest employment dynamics.
The BIPA hits keep coming for employers and companies in Illinois. Today, in a long-awaited opinion in Tims v. Black Horse Carriers, Inc., the Illinois Supreme Court found that a five-year statute of limitations applies to all BIPA claims. This is not welcomed news for employers as it broadens the potential exposure under this biometric law that comes with the heaviest penalties for failure to comply—even if no injury is suffered.
The H-1B season is off and running! Though United States Citizenship and Immigrations Services (USCIS) has not specified the dates the online lottery will be open this year, we know it will occur in March. I recommend that all petitions be ready for submission by March 1.
2022 is now “in the books” and organized labor has to be reeling seeing the latest news. Despite all of those sensational headlines involving a few high profile employers facing union organizing drives last year, the union membership rate dropped to a new historic low in 2022.
On December 29, 2022, President Biden signed an omnibus appropriations bill into law that includes expanded protections for pregnant and nursing employees through two new acts: The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP).
The long-awaited SECURE 2.0 Act of 2022 (“SECURE 2.0”), containing sweeping changes to workplace retirement plans, was signed into law on December 29, 2022 as part of the Consolidated Appropriations Act of 2023. SECURE 2.0 builds on the revisions to retirement plan rules enacted by the Setting Every Community Up for Retirement Enhancement Act of 2019 (the original SECURE Act), and makes even more aggressive changes.
While we continue to absorb the impact of the National Labor Relations Board’s recent expansion of its authority to include awards for consequential damages in unfair labor practice (ULP) cases, there are other significant pro-union decisions and directives that need to be on your radar.
Non-compete agreements – contract clauses, usually in employment agreements, that ban an employee from working in a certain industry, or in a certain geographic area for a period of time following termination of employment – have been under increasing scrutiny by state legislatures over the last several years. Many states, including Illinois, have banned their use for workers below certain income thresholds, for example.
On December 21, 2022, New York Governor Kathy Hochul signed into law a statewide pay transparency bill, Senate Bill S9427A, that will take effect September 17, 2023. New York’s Pay Transparency Law requires employers with four or more employees to disclose compensation or range of compensation to applicants and employees when posting any opportunities for hire, promotion, or transfer. The law defines “range of compensation” as the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the positing of an advertisement.
As labor unions continue to target banks and credit unions – employers that, as mentioned in our previous blog, unions historically avoided – employers in the financial industry must be aware of labor law developments. It is critical that employers know and understand the rules of engagement in traditional labor law --- particularly as the law develops under the current administration. What now will trigger an unfair labor practice charge or the ire of the National Labor Relations Board (NLRB) is much different than a few years ago. Additionally, the rules and procedures surrounding a union organizing drive is changing dramatically and evolving into a very pro-union process.
On November 21, 2022, New York State Governor Kathy Hochul signed Assembly Bill 8092B, amending the state's labor law to clarify that employers cannot retaliate against employees for “any legally protected absence pursuant to federal, local or state law.”
To strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses, the U.S. Department of Labor is expanding the criteria for placement in the Occupational Safety and Health Administration’s Severe Violator Enforcement Program (“SVEP”).
In another pro-union decision, the National Labor Relations Board (“NLRB” or “Board”) recently held that employers are responsible for all “direct or foreseeable pecuniary harms” sustained by employees as a result of an unfair labor practice. While such remedies have been ordered sparingly in the past on a case-by-case basis, the Board now mandates such an award in every successful unfair labor practice charge.
A 2019 study conducted by the U.S. Department of labor found that food production workers in Illinois and Ohio had significantly higher injury rates than the overall rates for manufacturers in the private sector. To try and correct this trend, OSHA started the Local Emphasis Program focused on more than 1,400 manufacturing facilities in both Illinois and Ohio.
With the holidays upon us, companies are assessing year-end to-do’s and considering what 2023 will bring. For companies employing California residents, compliance with the new California Privacy Rights Act (CPRA) should be at the top of their list. Indeed, to date, companies that employed California residents had a reprieve from the consumer-facing rules and requirements of the California Consumer Privacy Act (CCPA). The CCPA, which is, essentially, a data privacy “bill of rights” for Californians, even impacted many companies based outside of California but only as to their consumer-side relationships.
In 1986, the Reagan administration instituted use of the I-9 Immigrant form, requiring employers to verify their employees’ identity and eligibility to work. While the concept was simple and the current form was meant to be simple, compliance has been anything but simple and I-9 forms can feel like a minefield.
In another example of the Department of Labor (DOJ) pursuing criminal anti-trust cases against employers throughout the country, on October 27th, 2022, VDA OC, LLC (formerly Advantage On Call or AOC), a health care staffing company, pled guilty to conspiring with a competitor to assign and fix nurses salaries within a specific school district in Nevada, which violated Section 1 of the Sherman Act. We have previously written in more detail regarding the DOJ’s new commitment to criminally prosecute supposed labor market collusion amongst competitors. This guilty plea is essentially the DOJ’s first “win” in its criminal enforcement of labor violations under the federal antitrust laws, after incurring two prior losses. If employers are not attuned to this area of the law already, this serves as yet another wake up call.
As we discussed in our previous blog post, in 2021 the EEOC issued a technical assistance guidance addressing employers’ obligations under Bostock v. Clayton County, the U.S. Supreme Court’s 2020 landmark decision holding that Title VII prohibits workplace discrimination on the basis of sexual orientation and gender identity. We blogged about the Bostock decision in June 2020.
Proposed Amendment 1 to the Illinois Constitution creates many unknowns. However, it’s quite clear that the amendment accomplishes two major goals of labor organizations in Illinois. First, this will prevent Illinois from enacting any law that permits it to adopt “Right-to-Work” on any local or state level. Second, it will prevent lawmakers (in any level of government) from passing any law or local ordinance that attempts to reform, modify, moderate or in any manner address public union benefits and working conditions that are ultimately bargained for and agreed to in the past, current or future.
If companies that employ Illinois residents and use any type of equipment to scan fingers, hands, face, or eyes were not yet aware of and concerned by the Illinois’ biometric privacy law, the Illinois Biometric Privacy Act (BIPA), they should be now. On October 12, 2022, after a week-long trial, a federal jury returned a verdict finding that one of the nation’s largest railway companies, BNSF, had violated BIPA—to the tune of a $228 million judgment.
California Governor Gavin Newsom recently signed into law a number of new bills impacting employers operating in California, who must remain vigilant with these developments as they are quickly going forward.
On October 11, 2022, the U.S. Department of Labor (DOL) announced that it is proposing to do away with the existing independent contractor test that the Trump administration slipped into place in January 2021, in favor of a shift back to a “totality of circumstances” analysis.
The National Labor Relations Board (“NLRB” or “Board”) recently held that employers must continue deducting union dues from workers’ paychecks (referred to as “dues checkoff”) as agreed in their collective bargaining agreements (“CBAs”), even after those agreements expire.
Employers across all industries are concerned about employee retention in the continuing wake of the “Great Resignation” or the “Big Quit.” According to one of the largest global workforce surveys, 1 in 5 employees plan to quit in 2022.
On August 25, 2022, the U.S. Securities and Exchange Commission (SEC) voted to adopt the “pay-versus-performance” rule, requiring publicly traded companies (except foreign private issuers, registered investment companies, and Emerging Growth Companies) to provide clear disclosure to shareholders on the relationship between companies’ executive compensation and financial performance. The adoption finally implements Section 14(i) of the Securities and Exchange Act of 1934 (the “Exchange Act”), as added by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
The California State Legislature recently passed a Senate Bill 1162, a pay transparency bill intended to narrow the gender pay gap and differences in pay for Black and Latino employees. If the California Governor signs Senate Bill 1162 into law, California employers with 15 or more employees must include the pay scale for a position on all job postings and provide current employees with the pay scale for their position upon request. Moreover, employers with 100 or more employees must also submit an annual pay data report, including median and mean hourly rates for race, ethnicity and sex within each job category, to the Department of Fair Housing and Employment. Under this new law, employees and applicants would be able to access this pay information because the reports would be publicly accessible. The law includes civil pay penalties for employers in violation of these requirements.
Legislation aimed at expanding green energy construction projects is spreading throughout the United States. With it, prevailing wage mandates and project labor agreements tied to such projects are becoming more common. Construction contractors representing various trades and sizes need to be aware of the fine-print when considering bidding on these projects --- including simple repair and maintenance.
Recently, the 4th Circuit U.S. Court of Appeals issued a decision that expanded protections under the Americans with Disabilities Act (ADA) to people with gender dysphoria. While the case at issue was not employment-related, the implications of the decision are significant for all employers because it strengthens support for claims of ADA protection for individuals with gender dysphoria within the scope of employment, public accommodations, and government benefits and services.
On August 29, 2022, the National Labor Relations Board (NLRB) examined workplace restrictions on the display of union insignia where employers require employees to wear uniforms or designated clothing. In a 3-2 ruling, the NLRB decided that Tesla, Inc. violated labor law by restricting employees from wearing pro-union t-shirts because such restriction implicitly prohibits workers from substituting union attire for required uniforms.
The Seventh Circuit Court of Appeals ruled last week that a contractual choice of law provision was irrelevant to whether workers were employees or independent contractors and to whether pay deductions were lawful.
Check out some of the most recent state law updates on COVID-19, employee rights, minimum wage and paid leave.
Join us on Wednesday, September 21 at noon for a live-stream of our Eighth Annual Labor & Employment Fall Seminar as we discuss hiring, onboarding and retention. Our attorneys will discuss everything from the initial interview to the written job offer and everything in between.
On August 16, 2022, the 7th Circuit Court of Appeals rejected the Equal Employment Opportunity Commission’s (EEOC) attempt to increase the level of scrutiny given to sex discrimination cases under the Pregnancy Discrimination Act and the Civil Rights Act of 1964. With this ruling the Appellate Court affirmed a summary judgment award given to a large retail chain by a District Court in Wisconsin.
In a continuance of the labor-friendly trajectory of the National Labor Relations Board (NLRB) under the current administration, the 9th Circuit recently issued a decision upholding the right of the NLRB to award legal fees to a union incurred during the collective bargaining process. This ruling should put all unionized employers on notice of the ripple effects of decisions such as this one on their own bargaining.
In Constellium Rolled Products Ravenswood v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit addressed the tension between a worker’s? Section 7 protected and concerted activity rights under the National Labor Relations Act and workplace harassment that’s forbidden by workplace anti-bias laws. In a 2-1 ruling, the Court of Appeals held that the NLRB had adequate justification to rule that an employer violated federal labor law for firing a worker who wrote “whore board” on overtime sign-up sheets despite the employer’s contention that it was enforcing its anti-harassment policy.
States are becoming more focused on labor relations! Check out some of the most recent state law updates on employer-employee relationships, minimum wage and paid leave.
If we were to tell you that the Federal Trade Commission (FTC) and National Labor Relations Board (NLRB) recently entered into a Memorandum of Understanding (MOU) “Regarding Information Sharing, Cross-Agency Training, and Outreach in Areas of Common Regulatory Interest,” your response may well be “What? Why? And what ‘Common Regulatory Interest’ could they possibly share?” Well, good questions.
Check out some of the recent updates in COVID-19 regulations, discrimination policies, minimum wage and more!
On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) - the federal agency responsible for enforcing anti-discrimination laws - issued new guidance on when employers may require employees to screen/test employees for COVID-19. The updated guidance can be found in What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (the “Guidance”).
The federal Family and Medical Leave Act (FMLA) provides employees essentially two paths to bring lawsuits for alleged FMLA violations: retaliation claims and interference claims. Employers are generally familiar with the concept of retaliation, and FMLA retaliation claims tend to fit a familiar mold: If an employee suffers an adverse employment action (e.g., termination, unpaid suspension) that is causally connected to a request for FMLA leave or other FMLA-protected activity, the employee may have a claim for FMLA retaliation.
Illinois employers should update their leave policies in light of the new bereavement law going into effect on January 1, 2023. On June 9, 2022, Governor Pritzker signed into law the Family Bereavement Leave Act (“FBLA”). The FBLA amends the Child Bereavement Leave Act (“CBLA”) and expands upon an employer’s obligations to provide unpaid bereavement leave to its employees.
As litigation costs continue to explode, more and more businesses have been including arbitration clauses in contracts with employees and customers. These clauses, which frequently include class action waivers, allow businesses to remove lawsuits from court to the more streamlined and cost-effective arbitration system. In recent years, the U.S. Supreme Court has consistently enforced arbitration clauses in a wide variety of contexts.
The U.S. Supreme Court's decision last month to overturn Roe v. Wade presents new challenges for employee benefit plans. By overturning the case establishing a constitutional right to abortion, the Court's decision in Dobbs v. Jackson Women's Health allows individual states to impose restrictions or outright bans on abortion. The decision is quickly leading to a patchwork of state laws that plan sponsors must now consider.
Late last week, NLRB General Counsel Abruzzo issued yet another memorandum that she identified as an “Update on Efforts to Secure Full Remedies in Settlements.” She congratulated the Regional Directors for an “excellent job” implementing settlements in line with her September 2021 directives. The memorandum listed the various examples of the new make-whole remedies that Regions have secured through settlement agreements.
Learn about some of the most recent updates made to various state COVID-19 regulations!
Many states are updating their laws surrounding workplace rights and paid leave. This blog touches on some of the most recent and crucial updates made to local laws involving paid leave and worker rights.
On June 10, 2022 Governor Pritzker signed into law two new amendments to the Illinois Wage Payment and Collection Act (“Act”) that now expose non-union general contractors to liability for the wages of their subcontractor’s employees. Essentially, the amendments open up general contractors entering into construction contracts in Illinois to potential liability for claims brought under the Act against their subcontractors, for all contracts entered into on or after July 1, 2022.
Find out how some states have amended their state fair employment practices laws by redefining various key terms that have previously been consistent across the United States.
On January 1, 2022, we saw the Illinois minimum wage increase from $11.00 to $12.00. Not to be outdone, the City of Chicago and Cook County are increasing their set minimum wages on July 1, 2022.
On June 15, 2022, the United States Supreme Court held that the Federal Arbitration Act (FAA) partially preempts a rule of California law that invalidates contractual waivers of the right to assert representative claims under California’s Labor Code Private Attorneys General Act of 2004 (PAGA).
USCIS has announced a few measures to ease the backlog of Employment Authorization Document (EAD) cards. These may feel like baby steps. But they are steps in the right direction.
In today’s age of technology and innovation, more and more employers are hiring remote employees who live and work in a geographic location outside of where their business is located. Remote work offers advantages, including expanding access to a wider pool of employee talent and savings on overhead costs. But managing a multi-state workforce can be challenging.
In today’s virtual world so much has changed – we work from home, we attend meetings from home, and now, many companies are hiring from home. Virtual interviewing is on the rise, and for good reason. Companies can interview from a wide-breadth of candidates across the country without having to fly interviewees to the main office. However, video conference platforms can also open business up to potential litigation and compliance risk.
The Pandemic Era brought in droves of new challenges for employers, including The Great Resignation – an unprecedented trend of employees voluntarily quitting their jobs starting in 2021 and continuing to today. The unemployment rate is low and employers’ demand for labor is high meaning that it is more important than ever for employers to implement strategies for employee retention. Employers may want to kick-start these retention strategies with an eye towards working parents.
On April 7, CMS announced that it would be phasing out several temporary waivers enacted during the COVID-19 pandemic and restoring minimum regulatory requirements to protect residents’ health and safety.
Courts in the United States are split on whether a company’s acknowledgment of vicarious liability for an employee’s negligence, bars a claim of direct negligence against the company. Based on appellate court decisions, Illinois had been one of the states that barred direct negligence claims against a company when the company had acknowledged being vicariously liable for its employee’s actions. However, on April 21, 2022, in McQueen v. Green, the Illinois Supreme Court rejected the earlier appellate court decisions and held that companies can be both vicariously liable for an employee’s negligence, as well as directly liable for the company’s negligence.
Mayor Lori Lightfoot and the Commission on Human Relations (the “Commission”) recently amended and expanded the sexual harassment prohibitions set forth by the City of Chicago. The Ordinance provides for many changes—it (i) expands the definition of “sexual harassment;” (ii) expands the requirement for written policy documents; (iii) increases the statute of limitations for reporting discrimination; (iv) increases the monetary penalty for discrimination; and (v) has caused additional “safety measures” to be implemented by employers.
As employers continue to face staffing issues, using independent contractors has become more common. Health care entities need to be mindful of the special requirements that apply to such arrangements.
Perhaps flying under the radar of everyone except antitrust lawyers (and the employers who have been targeted), the Department of Justice (DOJ) has made a concerted push recently to use federal anti-trust laws as a tool to bolster workers’ rights, even going so far as to prosecute employers for alleged anticompetitive practices in labor markets.
Here are some of the latest state and local employment law updates for May 13, 2022.
Many—if not most—employment discrimination and retaliation lawsuits involve a company’s decision (a) to terminate or otherwise discipline an employee or (b) not to hire a particular applicant. And the reason why the company made its decision is quite possibly the most important fact in the majority—if not all—of these cases.
On May 2, 2022, the United States Supreme Court granted certiorari in Helix Energy Solutions Group, Inc. v. Hewitt, a case that deals with the Section 13(a)(1) and 29 C.F.R. § 541.601 highly compensated employee exemption under the Fair Labor Standards Act.
Employers with 100 or more employees in Illinois have begun receiving notice that it is time for their business to comply with obtaining their Equal Pay Act Registration Certificate (“EPRC”). In order to obtain the EPRC from the Illinois Department of Labor (“IDOL”) a business must complete an EPRC Compliance Statement, submit their Federal EEO-1 disclosure and provide pay data regarding their Illinois employees.
Below are some of the latest state updates –
INDIANA
Indiana Code 24-4.9-3-3, which addresses “reasonable” delays in reporting data security breaches, was amended by H.B. 1351 to impose a forty-five (45) day limit on reporting breaches of certain personal information. Effective July 1, 2022, employers must notify Indiana residents, including employees and applicants, no later than forty-five (45) days after discovering a breach of certain personal information.
MASSACHUSETTS
The COVID-19 Massachusetts Emergency Paid Sick Leave Program ended on March 15 ...
Board diversity requirements have hit the headlines again due to a recent ruling by a California Superior Court judge who struck down a 2020 California law (AB 979) that required companies headquartered in California to have from one to three board members who self-identify as a member of an “underrepresented community,” which includes Asian, Black, Latino, Native American, and Pacific Islander individuals, as well as those who are gay, lesbian, bisexual or transgender. It allowed the Secretary of State to fine companies who did not comply. The court found for the plaintiff ...
On April 11, 2022, the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, filed a brief in a case pending before the NLRB, Cemex Construction Materials Pacific, seeking a return to the NLRB’s long-abandoned Joy Silk doctrine. Under that doctrine, unions may obtain representational status, simply by claiming to have the support of a majority of a private employer’s employees (typically through union card signing)—and putting the burden on the employer to affirmatively demonstrate a good-faith doubt as to that majority status in order to lawfully ...
Below are some of the latest state updates and posters —
CALIFORNIA
Minimum Wage Poster
The City of Pasadena has updated its Minimum Wage Poster to reflect a $16.11 hourly minimum wage rate, effective July 1, 2022 through June 30, 2023. The minimum wage requirement set forth in the Pasadena Minimum Wage Ordinance applies to adult and minor employees who work two (2) or more hours per week in Pasadena.
Employers must (1) display this poster in the workplace where it can be easily read by employees, and (2) translate its contents into languages spoken by five percent (5%) or more of their ...
Treat ‘em like mushrooms is an expression that is never actually uttered out loud by union organizers, but it’s certainly implied when it comes to organizing a workforce. Keeping the worker in the dark concerning key facts and the fine print before casting an official vote for or against union representation is something organized labor tries to ensure. In fact, under the National Labor Relations Act (NLRA), unions not only don’t have an obligation to share key information to prospects, they can also lawfully mislead workers and provide them with false ...
A recent case provides a refresher step-by-step guide on the requirements of a lawfully administered disability accommodation policy under the Missouri Human Right Act.
See some of the latest state updates and posters – Fair Employment, Paid Leave and Minimum Wage Rates
The Department of Homeland Security (DHS) announced that is it ending the List B identity document flexibilities it had provided employers since May 2020. Starting on May 1, 2022, employers may ONLY accept UNEXPIRED List B documents.
In the past few years, a law was passed in Illinois that added annual reporting requirements for publicly held companies with their headquarters in Illinois.
Although labor unions have historically not targeted banks and credit unions for organizing, desperate times call for desperate measures as union membership continues to fall in the United States with only 6.1% of the private sector workforce belonging to a labor organization. While just over 1% of all financial services employees are unionized, there has been an uptick in unionization hitting the financial industry since 2020; with signs of more aggressive action on the part of labor organizations not slowing down.
Recent Union Organizing of Financial Institutions
Recent ...
On March 14, 2022, Judge Marcia Crone of the U.S. District Court for the Eastern District of Texas ordered that the Trump administration’s rulemaking regarding the Fair Labor Standards Act’s (FLSA) Independent Contractor Test (specifically Title 29, Part 795 of the Code of Federal Regulations) be reinstated effective March 8, 2021. The court ruled that the Department of Labor’s delay and subsequent withdrawal of the rule was a violation of the Administrative Procedure Act (APA). It is unclear whether the Department of Labor will appeal the Texas court’s decision to the ...
Retaliation remains a top enforcement priority of the federal government. Last week the U.S. Department of Labor (DOL) announced a new field assistance bulletin entitled “Protecting Workers from Retaliation” and pledged to “use every tool available” to “uphold the rights of workers to identify violations of the law without fear of termination or other threats to their reputation, safety or livelihood.” Making good on its pledge, this week the DOL ordered an Arizona manufacturer to pay nearly $600,000 and reinstate a former employee who claimed retaliation ...
Below are some of the latest state updates and posters –
NEW JERSEY
The State of New Jersey has issued a new Wage and Hour Law Abstract in connection with its amendment of the statutory minimum wage rate. Accordingly, employees are not to be paid less than the state minimum wage schedule provided.
Overtime is payable at a rate of 1.5 times the employee’s regular hourly rate for hours worked in excess of 40 hours per week. The following employees are exempt from overtime: (i) executive, administrative and professional; (ii) farm workers; and (iii) limousine drivers.
Employees ...
Below are some of the latest state updates and posters –
CALIFORNIA
The State of California has released various information on Covid-19 related paid sick leave for 2022:
- According to the Supplemental Paid Sick Leave Poster, which became effective on February 19, 2022, covered employees in the public or private sectors who work for employers with at least 26 employees are entitled to up to 80 hours of 2022 COVID-19 related paid sick leave from January 1, 2022 through September 30, 2022. This leave is to be issued immediately upon any form of request to employers, and 40 of ...
President Biden, the self-described “most pro-union president,” is faced with the grim reality that despite his administration’s systematic efforts to boost union membership, union membership has, instead, fallen back to historic lows. The Bureau of Labor Statistics released figures that the rate of union membership, or the percentage of wage and salary workers who were part of a union, dropped to 10.3% in 2021, matching the record low in 2019. Among private-sector workers, the numbers were even worse: union members made up just 6.1% of that workforce, compared to 33.9% of ...
On December 27, 2021, the NLRB entered a formal Notice and Invitation for briefing from the public to aid in its consideration of: (1) overturning the independent-contractor standard established in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019); and (2) returning to the standard from FedEx Home Delivery, 361 NLRB 610, 611 (2014) either in its entirety or with modifications.
The notice and invitation come as part of the Board’s review of a finding that certain makeup artists, wig artists, and hairstylists are employees of The Atlanta Opera, Inc. and not independent ...
Court decisions dealing with and interpreting the Illinois Prevailing Wage Act do not occur with great regularity. So when an interesting decision comes down, we feel it is worth reporting on and should be noted by those businesses that are subject to the Act.
The case is Rodriguez v. Simplex Grinnell LP and is from the U.S. District Court for the Northern District of Illinois, decided in August 2021. In that case, the court rejected plaintiffs’ (employees of Simplex Grinnell who worked on public projects in the State of Illinois) argument that testing andor inspecting work ...
Below are some of the latest state updates –
CALIFORNIA
The State of California has updated the following:
- According to a Notice issued by the Los Angeles Office of Wage Standards on February 1, 2022, the city’s hourly minimum wage will rise from $15.00 to $16.04 as of July 1, 2022.
- Supplemental paid sick leave is now provided to covered employees under Senate Bill No. 114. Such employees must be unable to work, in person or remotely, for reasons related to COVID-19. The paid sick leave will be retroactive from January 1, 2022 until September 30, 2022. The same provisions apply to ...
On February 10, 2022, the U.S. Senate passed a bill that prohibits mandatory arbitration for workplace sexual harassment or sexual assault claims. The bill, H.R. 4445, originated in the House, and later passed there on February 7, 2022. The Senate quickly passed the bill by large, bipartisan margins. President Biden has voiced support for the bill and is expected to sign it into law.
H.R. 4445, named the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, prohibits enforcement of contracts that mandate that workplace disputes alleging sexual assault or sexual ...
It depends where you stand. Here are some of the latest updates –
California: Yesterday, Governor Gavin Newsom signed a bill that restores the expired supplemental paid leave requirements that he signed into law back in March 2021. In a nutshell, beginning February 19 (retroactive to January 1, 2022) and continuing through September 30, 2022, California employers with more than 25 employees must provide up to two (2) weeks of paid COVID-19 leave to employees who are unable to work or telework due to COVID-19 reasons:
- First bank of hours: An employee can receive up to 40 hours of ...
No employer is immune from staffing storages in today’s climate, but December 2021 unemployment data released this week by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS), confirms what Indiana employers have been feeling for a while: it is harder than ever to recruit and retain talent.
According to the report, Indiana had the lowest unemployment rate in the nation in December 2021 at just 1.3% (tied with Utah), significantly lower than the national rate of 3.7%. Indiana also took the top two spots on the national list of metropolitan areas for December 2021 ...
The Illinois Supreme Court forever quashed one of Illinois employers’ last lines of defense to the onslaught of claims brought under the Illinois Biometric Information Privacy Act (BIPA).
As we reported on January 29, 2021, the Illinois Supreme Court granted leave to appeal the Illinois Court of Appeals for the First District’s ruling in McDonald v. Symphony Bronzeville Park LLC that held BIPA claims are not the type of injuries falling under the scope of the Workers’ Compensation Act (WCA) and its exclusivity provisions. Today, the Illinois Supreme Court in a 7-0 ...
Within the last week, the State of Illinois issued two new workplace posters and the District of Columbia issued a revised COVID-19 poster. The State of Minnesota and the State of Colorado also updated their legislation on pregnancy accommodations and sentencing reform, respectively.
All posters are required postings and must be displayed in the workplace—including, to the extent applicable, employees’ remote workplaces.
ILLINOIS
The Illinois Department of Labor (IDOL) has issued the following posters:
This poster details the ...
Despite the ever increasing concerns over privacy and data breaches, both externally and internally, it may become more difficult for employers to legally protect their confidential and proprietary information. As explained in our November 8, 2021 article, “Employers’ Rights Under the Computer Fraud and Abuse Act (CFAA) Narrowed after Supreme Court Decision in Van Buren,” the United States Supreme Court significantly narrowed the interpretation of the CFAA and therewith employers’ means of seeking remedies for the misuse of confidential data. In essence, the Court ...
If you’re wondering what to do in the wake of the United States Supreme Court’s decision striking down the OSHA’s Emergency Temporary Standard mandating COVID-19 vaccination and testing, you’re not alone. Unfortunately, there is no short answer for many employers – it largely depends on your industry, and where you’re located.
First and foremost, you need to verify that you are not subject to any other COVID-19 vaccination mandates. Employers in the health care industry that fall under the reach of the Centers for Medicare & Medicaid Services (CMS), for ...
On December 7, 2021, we brought to you the news that U.S. District Court Judge R. Stan Baker in the Southern District of Georgia put a nationwide halt on the federal contractor vaccination mandate. On January 21, 2022 Judge Jeffrey V. Brown of the U.S. District Court for the Southern District of Texas agreed with Judge Baker. The judge opined that this case was not about the importance of being vaccinated or not, because the judge agreed it was important that everyone should get vaccinated. “It is instead about whether the President can, with the stroke of a pen and without the input of ...
As of January 2022, the State of California and the State of Oregon have issued new workplace posters and updated certification forms related to various labor laws. The materials addressed below are mandatory postings for all employers, whether that be in the workplace or provided in employee handbooks. Businesses that fail to comply may be subject to fines or sanctions.
CALIFORNIA
The California Department of Fair Employment and Housing (DFEH) has issued multiple new posters and certification forms in connection with the expansion of the California Family Rights Act (CFRA) and ...
Signed into law on October 7, 2021 by California Governor Gavin Newsom and effective January 1, 2022, the “Silenced No More Act” amends and expands the previous Stand Together Against Non-Disclosures (STAND) Act.
The STAND Act was passed in 2018 in the wake of the #MeToo movement and focused specifically on claims of sexual harassment and discrimination or retaliation based on sex. The new law goes beyond the STAND Act’s focus on sex discrimination and harassment, and expands its protections to any characteristic protected under California law. For example, this would ...
On January 14, CMS issued guidance regarding when the COVID-19 vaccine mandate for health care workers will be enforced in the 24 states affected by the Supreme Court’s ruling issued the previous day. Those states are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming.
By February 15, 2022, covered facilities must demonstrate that:
- Policies and procedures are developed and ...
President Biden announced on January 10th that the Biden-Harris Administration is requiring insurance companies and group health plans to cover the cost of over-the-counter (OTC), at-home COVID-19 tests. Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the U.S. Food and Drug Administration (FDA) will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are ...
Ending months of uncertainty, today the Supreme Court issued its decision allowing CMS to enforce its vaccine mandate for health care workers. The Court’s decision stays the injunctions entered by federal courts in Missouri and Louisiana. CMS may now enforce the rule nationwide. Before today’s decision, the CMS rule could only be enforced in 26 states.
As a refresher on what the CMS rule requires, see our previous summary of the rule. Further guidance should be issued by CMS before compliance is required. We will continue to keep you updated.
In another opinion issued ...
In a 6-3 decision just released, the Supreme Court blocked OSHA’s Emergency COVID-19 Vaccination and Testing Standard (“ETS”) from taking effect, which required employers with one hundred or more employees to conduct weekly testing of all unvaccinated employees, amongst other things.
While procedurally, the ruling merely reinstituted the stay of the ETS, the ruling signaled the final outcome for the ETS, finding more broadly that the ETS went beyond OSHA’s authority. The Court stated: “[a]lthough Congress has indisputably given OSHA the power to regulate ...
On January 6, 2022, the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) released a signed Memorandum of Understanding (MOU) detailing the agencies’ most recent pact to enforce federal labor and employment laws.
The partnership intends to ensure that workers receive proper wages and are able to take collective action to improve working conditions without fear of retaliation. The MOU outlines several procedures on information-sharing, joint investigations and enforcement activity, and training meant to strengthen the agencies’ ...
With the New Year upon us, it is time to begin the initial H-1B process for any interested companies or organizations with foreign workers. Now is the time to see if anyone will need assistance with an H-1B petition.
In 2019, USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for foreign national employees. Last year, the registration period for foreign nationals ran from March 9 to March 25, 2021. We anticipate a similar timeframe this year. Once the registration period is over, the US Citizenship and Immigration ...
On December 17, 2021, in a 2-1 decision, the 6th Circuit Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) previously ordered by the 5th Circuit Court of Appeals. Therefore, OSHA’s ETS mandating workplace vaccination and testing on all private employers with 100 or more employees is back on. While the 6th Circuit did not address timing issues, the day after the decision was released, OSHA announced that it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for ...
In the ongoing saga of the federal government’s attempts to impose vaccine mandates on certain sectors, on Wednesday, December 15, the United States Court of Appeals for the Fifth Circuit concluded that the nationwide injunction issued by a Louisiana District Court was overbroad and could only apply to the 14 states that were plaintiffs in the lawsuit. The court stayed the injunction for the 26 states that were not parties to the lawsuit before it or covered by the 10-state injunction issued by the Eastern District of Missouri on November 29. Therefore, the CMS vaccine ...
If you have frequented the Amundsen Davis Labor & Employment Blog, you may recall that we previously reported on one of the very first actions taken by Governor Pritzker immediately following his inauguration in January 2019. Gov. Pritzker signed into law additional amendments to the Illinois Prevailing Wage Act (IPWA). Amongst the changes made to one of the most onerous prevailing wage laws in the United States, was a new mandate that required all contractors to submit their monthly certified transcript of payroll via the Illinois Department of Labor’s (IDOL) electronic ...
In September President Biden’s Executive Order 14042 was blessed by the Safer Federal Workforce Task Force requiring certain federal contractors to have all of their contract and related workers vaccinated against COVID-19 by the new deadline date of January 4, 2022 (it was previously set for December 8, 2021 but with the OSHA and CMS mandates, the federal contractors’ date was extended). Just like President Biden’s Orders to get both health care workers and employees who work for companies with 100 or more employees vaccinated, the federal contractor vaccination ...
On Tuesday, November 30, Louisiana federal district Judge Doughty issued a nationwide injunction against implementation of Centers for Medicare & Medicaid Services’ (CMS) vaccine mandate for health care workers. Judge Doughty’s decision was issued just a day after Missouri federal district Judge Schelp issued a preliminary injunction against the mandate in 10 states. Unlike the Missouri decision, the Louisiana court issued a nationwide injunction due to that court’s conclusion that there was a need for uniformity and protection of unvaccinated health care ...
With the help of the US Department of Labor (DOL), the Biden Administration made good on its promise to increase the minimum wage for workers who work on new or updated federal contracts (including extended, renewed, or exercise of an option on an existing contract). The President’s full Executive Order may be found on the White House website.
This was carried out by the DOL on November 22, 2021 with its Final Rule requiring that such workers’ minimum pay will now be $15.00 an hour starting January 30, 2022. Keep in mind if your local or state minimum wage is more, you have to pay the ...
In the past several months there has been a flurry of Executive Orders and other legally binding rules regarding vaccine mandates. Standing first and above the rest are the Executive Order by the Biden Administration mandating federal contractors have a vaccinated workforce without the option for testing (we previously blogged on this topic on September 13, 2021 and on September 27, 2021), and the imminent Emergency Temporary Standard (ETS) to be issued by the Occupational Safety and Health Administration (OSHA).
In the wake of those federal mandates many states have ...
In September, the Biden Administration directed OSHA to issue an Emergency Temporary Standard (“ETS”) requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. That promised ETS was published on November 5, 2021, and linked here are OSHA’s summary of the ETS and the FAQ’s relating to the ETS.
One week later, on November 12, 2021, the 5th Circuit Court of Appeals issuing a scathing opinion staying the enforcement of the ETS. In the week that followed, legal challenges were ...
In December 2018, I got an unpleasant surprise: My first – and only – H-1B petition denial in my over 20+ years of practicing immigration law.
The petition was on behalf of an operations research analyst. I had done the same petition for other operations research analysts at this company. USCIS had approved them all, some all the way to green cards.
In this case I prepped the client, submitted a thorough petition, and responded to all requests for evidence. Unfortunately, this unpleasant surprise was not a shock. USCIS’s scrutiny had intensified and as many thought it was ...
Today the Centers for Medicare & Medicaid Services (CMS) released its interim final rule requiring all employees and certain suppliers of most Medicare and Medicaid certified providers to be fully vaccinated against COVID-19 unless they receive an exemption due to a disability, medical condition or sincerely held religious belief (the “Rule”) (the text of the regulations starts on page 171 of the CMS publication). The Rule is effective upon official publication, which is targeted as November 5.
Covered Health Care Entities
The Rule applies to the following types of CMS ...
The United States Department of Labor released a long-awaited Emergency Temporary Standard (“ETS”) for private employers with over 100 employees. The 490 page interim final rule answers a number of questions employers have had since the Biden Administration announced its plan in September, including:
What is the application to employers?
The ETS applies to employers with 100 or more employees as of November 5, 2021, regardless of the number of employees working at a specific location. The ETS does not, however, apply to employers covered by the CMS rule or federal ...
The executive compensation clawback rule mandated by Congress in Section 954 of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), is back. In the event of corporate misconduct, it will enable the SEC to recoup executive compensation (i.e., bonuses or other incentive-based pay), regardless of whether the executive was directly involved in or accused of any wrongdoing.
Section 954 of the Dodd-Frank Act
The U.S. Securities and Exchange Commission (SEC) proposed an initial draft of Section 954 in 2015. Under Section 954, the SEC was to issue rules ...
On October 29, 2021, the U.S. Department of Labor published its final rule regarding tipped employees with dual jobs (i.e., employees who perform both tipped and non-tipped work), rejecting the Trump-era approach to determining when tipped employees may be paid subminimum wages. The final rule reinstates the dreaded “80/20” rule that employers with tipped employees are likely familiar with, and adds a new “substantial amount of time” component to the determination. If you are an employer covered by the Fair Labor Standards Act, listen up!
The 80/20 Rule
Under the ...
As many employers begin implementing COVID-19 vaccine mandates, they are receiving a large number of employee requests for exemption from the vaccine for religious reasons. Before this week there was no direct guidance from the EEOC on this point, but that changed when the EEOC added this topic to its COVID-19 guidance. The following summarizes key points from that guidance.
An employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, the employer may ask for an explanation of how the employee’s religious belief ...
Good, bad or otherwise… no matter your own personal or professional viewpoint, the fact is the National Labor Relations Board (NLRB) is poised to usher in new reforms and implement pro-labor priorities with the intent of reversing the modern-day trend of unions losing members in the private sector and penalizing employers under the National Labor Relations Act (NLRA) who attempt to push back against labor unions and related union organizing. While Big Labor continues to push the PRO-Act in Washington, D.C., there are many changes being implemented at the NLRB by recently ...
As discussed in our September 9, 2021 blog, the Biden administration has directed OSHA to implement an Emergency Temporary Standard that will require employers with 100 or more employees to ensure their employees are either fully vaccinated or tested weekly for COVID-19. While employers anxiously await OSHA’s Emergency Temporary Standard and guidance on who it applies to and what it entails, federal courts are upholding vaccine mandates that employers have chosen to voluntarily implement.
In August, New York City announced it was implementing a vaccine mandate requiring ...
As soon as the Biden administration announced it would ease travel restrictions in early November, my phone began ringing non-stop and email notifications started pinging like popcorn. If you work in Human Resources, you may know what I mean because it is likely your phone and email were ringing first.
HR clients were sending the messages on behalf of their foreign national workers and students who were asking if they could travel. Questions like “Can I go home for Christmas?” and “Is it safe to travel home in late November?”
Unfortunately, while the easing of restrictions is ...
In an aggressive effort to pressure employers into complying with the Biden Administration’s promised vaccine mandate, House Democrats buried an approximate five-fold increase to OSHA fines in their $3.5 trillion budget reconciliation bill, seeking to increase the maximum fines for a “serious” citations from $13,653 to $70,000 and for “repeat” and “willful” citations from $136,530 to $700,000. The incredible fine increase stems from OSHA’s concern that employers are ignoring its COVID-19 guidance and standards because the risk of non-compliance is ...
Employers with tipped employees, take note: the U.S. Department of Labor (DOL) released its long-awaited final rule on tip regulations, which was officially published on September 24 and becomes effective November 23, 2021. The final rule makes a number of changes that will impact tipped employees and their employers, including:
Civil Money Penalties
The DOL may assess a penalty up to $1,100 per violation against employers who take tips earned by their employees – regardless of whether the violations are repeated or willful. This means a penalty could be assessed on an ...
On September 24, 2021, as instructed by President Biden’s Executive Order 14042, the Safer Federal Workforce Task Force (“Task Force”) published its COVID-19 Workplace Safety for Federal Contractors Guidance. We first updated you on this Executive Order in our blog published on September 13: Who is a Federal Contractor for Purposes of the Biden Vaccine Mandate? But does the Task Force’s new guidance actually assist us in determining what federal contractors are covered under the Executive Order? Unfortunately, certainty as to who is covered by the Executive ...
As a part of Missouri’s new Victims Economic Safety and Security Act (VESSA), employers in the state with at least 20 employees must now provide unpaid leave to employees who are victims of domestic or sexual violence, or who have family or household members who are victims of the same. Effective August 28, 2021, all covered employers are required to notify employees of their right to unpaid leave under the law by or before October 27, 2021. The Missouri Department of Labor has published a poster which, if prominently posted, will meet this requirement.
The new mandate is ...
Last week, the EEOC filed a federal lawsuit in Georgia against an employer that did not allow an employee with a medical condition to work from home. Employers should carefully consider the circumstances at issue in this lawsuit when evaluating work-from-home accommodation requests as we anticipate litigation of this sort will arise more frequently in the coming months.
The employee at issue (“Moncrief”) worked as a Health Safety & Environmental Quality Manager at a pharmaceutical manufacturing facility. She has a number of physical impairments, including chronic ...
On August 23rd Governor Pritzker issued Executive Order 2021-20 requiring health care workers, school personnel, higher education personnel and students, and state-employees and contractors who work at state-owned or operated congregate facilities to get their first dose of a two-dose COVID-19 vaccine series, or a single-dose COVID-19 vaccine, within 10 days and be fully vaccinated within 30 days, subject to applicable medical and religious exemptions under federal and state law.
On September 9, 2021 President Biden announced sweeping new vaccine mandates for federal employees, federal contractors, and an upcoming OSHA Emergency Temporary Standard Rule for companies with more than 100 employees.
The recent announcement that Delta Airlines will begin imposing a $200 per month health insurance surcharge on unvaccinated employees has prompted many employers to consider whether a similar surcharge may be an alternative to mandating COVID-19 vaccinations for employees.
Now that the Delta variant is surging, employers are venturing into the arena of mandating that their employees take the COVID-19 vaccine. But deciding to mandate vaccination and actually implementing such a requirement is no easy feat.
Wisconsin employers discounting the possibility of organizing campaigns and unionization in their workplace.
On August 13, 2021, the Illinois Second District Appellate Court upheld the Illinois Human Rights Commission’s determination that Hobby Lobby violated the Illinois Human Rights Act (IHRA) by refusing to allow a transgender employee to use the restroom that matched her gender identity and awarded $220,000 in emotional distress damages against Hobby Lobby.
The Fight for Restroom Rights – Illinois Courts Follow National Trend in Prohibiting Sex Discrimination of Transgender Employees and Requiring Equal Access to Bathrooms
President Biden announced recently that those suffering “Post-Acute Sequelae of Sars-Cov-2 Infection,” aka long haul COVID-19, may qualify for protection under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
Our understanding of the aftereffects of COVID-19 continue to evolve. The CDC currently lists the most common post-COVID symptoms on their website. These symptoms include:
- Dyspnea or increased respiratory effort
- Fatigue
- Post-exertional malaise andor poor endurance “Brain fog,” or cognitive impairment
- Cough
- Chest ...
The short answer is, private sector employers can very likely terminate the employee. If the employee is at-will, they can be fired for any non-discriminatory reason (or no reason at all); and, intentionally using the wrong name or pronoun to refer to a coworker is certainly a non-discriminatory reason. Even if the employee has “for cause” protection through an employment contract, there’s a pretty good chance that intentionally misgendering their coworker is sufficient cause to terminate, especially if they’ve been previously warned about similar behavior.
The issue ...
“This” is a no-call/no-show policy, the terms of which are generally something like: “An employee who is absent from work for three consecutive days without giving proper notice to the Company will be considered to have voluntarily abandoned their position and resigned from employment with the Company.”
A recent Michigan state appellate court decision illustrates one reason why employers should have a no-call/no-show policy disseminated to all employees. In that case, an employee who was terminated after being absent for three consecutive days without calling-in to ...
Employers who require employees to undergo mandatory security checks, health screenings, or similar pre- or post-shift activities take note: a growing number of courts have determined time spent waiting to undergo and actually undergoing the check or screening may be compensable under state law.
The most recent example is the Supreme Court of Pennsylvania, which concluded that the time Amazon employees spent on their employer’s premises “waiting to undergo, and undergoing, mandatory security screening” was compensable time under state law. That “state law” ...
On July 23, 2021, the United States Department of Labor (DOL) announced a proposed rule to increase the minimum wage for employees of covered federal contractors and subcontractors to $15.00 per hour. This rule follows President Biden’s Executive Order calling for an increase to the minimum wage for federal contractors. The rule suggests that the minimum wage increase go into effect January 30, 2022 and increase annually beginning in 2023 based on inflation.
The Proposed Rule is not final and may be revised. The DOL is accepting comments until August 21, 2021 and will publish its ...
Just when we were starting to let loose and enjoy the summer without masks, as a result of rising number of COVID-19 cases and the Delta variant, the CDC revised their guidance for fully vaccinated individuals on July 27, 2021 with the following changes:
- Fully vaccinated individuals are recommended to wear masks when indoors in areas of substantial or high transmission.
- Fully vaccinated individuals who have a known exposure to someone with suspected or confirmed COVID-19 should be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive ...
The National Labor Relations Board (NLRB) ruled 3-1 on July 21, 2021 that labor unions may continue to use large, inflatable balloons–usually in the shape of an ugly rat–to aid in publicity of labor disputes, whether connected with traditional picketing activity or without. The inflatable rat balloon used by the International Union of Operating Engineers, Local 150 has been nicknamed “Scabby.” Scabby was the subject of the NLRB’s ruling. In that case, Local 150 erected Scabby and banners at the entrance to the parking lot at an RV tradeshow. The rat and signage identified ...
On June 15, 2021, The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.” This resource reviews the impact of the Supreme Court’s Bostock v. Clayton County case and provides the EEOC’s position on what constitutes unlawful discrimination based on sexual orientation and gender identity. The EEOC’s answers to key questions on this issue are summarized below.
Does Title VII’s prohibition against sex discrimination extend to treatment based on ...
On June 25, 2021, Governor Pritzker signed into law additional amendments to the IL Equal Pay Act of 2003.
March 2021 Amendments (Recap)
As outlined in our March 23, 2021 blog article, Will Employers Have to Give 1% of their Total Gross Profits to the State of Illinois? Gov. Pritzker Signs into Law Unprecedented Changes to IL Equal Pay and Corporate Laws, the March amendments to the Act require businesses with 100 or more employees to obtain certification of compliance with the Equal Pay Act from the IL Department of Labor (IDOL).
The certification process requires employers to ...
It’s that time of year (again) for increases in minimum wage. However, this year is slightly different! In spite of the Cook County written notices that some employers may have received, the Cook County Minimum Wage for non-tipped employees is NOT increasing, as the unemployment rate for Cook County during the prior year was greater than 8.5%. However, the Cook County Minimum wage for tipped employees will increase on July 1st from $6.00 to $6.60 to match the increase under Illinois law. For City of Chicago employers, the minimum wage for both tipped and non-tipped ...
On June 21, 2021, the US Department of Labor (DOL) announced that it has proposed new rulemaking, and is seeking input on significant limits to an employer’s ability to utilize the tip credit.
Under the current law, the Fair Labor Standards Act and many state laws allow employers to pay employees in tipped positions a lower cash wage, and take a credit against the tips earned by the employee to make up the balance for the applicable minimum wage. The proposed changes impact when the tip credit is applicable.
The proposed rule places the work that a tipped employee performs into three ...
On June 10, 2021 OSHA issued its COVID-19 Emergency Temporary Standard (ETS) for the health care industry, along with general guidance for all other employers, which we already touched on in a previous post. However, there remains a lot to unpack, as there are many unanswered questions, especially for the health care field. Below we dig a bit deeper into the ETS and its practical implications for health care providers.
Are you covered? The first question—and it is not as clear cut as it may seem—is whether the ETS applies to your business. OSHA has issued a flowchart to ...
Employers of all sizes and industries, operating anywhere in the U.S., need to conduct HR Audits regularly. In 2021 and beyond, it is critical to carefully evaluate all aspects of how to properly and lawfully administer and manage personnel issues. Workplace laws, rules and regulations are constantly changing – what was lawful yesterday may be unlawful tomorrow. Annual HR Audits conducted by those with intimate knowledge and understanding of the latest legal developments, including enforcement, must be part of any employer’s regular processes.
Amundsen Davis’s ...
A federal judge in Texas on June 12, 2021 dismissed a lawsuit brought by Texas health care workers challenging their hospital’s COVID-19 vaccine mandate. The scathing opinion by U.S. District Judge Lynn N. Hughes left no doubt that he believed the claims of the 117 plaintiffs were without merit.
The lawsuit was brought by employees of Houston Methodist Hospital, who had refused the vaccine, after the hospital in April announced a policy requiring vaccination of all employees. In early June, over 170 employees of the hospital were suspended for two weeks without pay over their ...
As reported in prior blogs, the Illinois legislature for several months has been considering amendments to the Illinois Freedom to Work Act that apply to non-compete and non-solicitation restrictions. Amundsen Davis attorneys worked closely with the Illinois Chamber of Commerce to protect the interests of employers as much as possible during the legislative process.
The legislature has now passed SB672. It is generally viewed as a compromise between employer and employee interest groups. It is not a ban on restrictive covenants, but it does impose important limits on them.
On June 10, OSHA issued its long-promised COVID-19 Emergency Temporary Standard (ETS). Surprisingly, the ETS relates only to the health care industry, but updated guidance has been issued for all other industries, as outlined below:
Non-Health Care Industries: For non-health care industries, including manufacturing and construction, OSHA only intends to continue issue guidance relating to COVID-19, including updated guidance on complying with the CDC’s latest recommendations. Notably, the updated guidance exempts fully vaccinated workers from wearing ...
Effective May 25, 2021, the State of Nevada enacted amendments to the Nevada Unfair Trade Practice Act that address non-compete agreements. Prior to the new amendments, Nevada law provided that a non-competition covenant is deemed void and unenforceable unless: it is supported by valuable consideration, it does not impose any restraint that is greater than required for the protection of the employer, it does not impose any undue hardship on the employee, and it imposes restrictions that are appropriate in relation to the valuable consideration supporting the non-competition ...
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding employers offering incentives for employees to be vaccinated against COVID-19. The updated guidance also clarifies issues related to whether employers can mandate that employees be vaccinated before entering the workplace.
Interestingly, the EEOC’s guidance on vaccine incentives is broken into two parts: (1) incentives for employees voluntarily providing proof that they received a vaccination on their own, and (2) incentives for employees who voluntarily receive a ...
With the upcoming Memorial Day holiday offering an opportunity to acknowledge and appreciate the sacrifice made by military families, it seemed a fitting time to revisit the legal nuances of providing preference in hiring veterans with disabilities. Veterans report high instances of service-connected disabilities, including blindness, deafness, missing limbs, major depressive disorder, and post-traumatic stress disorder. Some laws require employers to provide preference to disabled veterans. Some employers voluntarily create affirmative action programs for ...
Over the past several years, the State of Oregon has enacted significant statutory limits on non-compete agreements. Under ORS 653.295, as in effect until recently, a non-compete was “voidable and [could] not be enforced by a court of this state” unless:
- The employer advised the employee in a written employment offer at least two weeks before the first day of employment that a non-competition agreement is required, or the non-competition agreement is executed upon the employee’s bona fide advancement;
- The employee is exempt from Oregon minimum wage and overtime law;
- The ...
***On May 17, 2021, OSHA updated its web page regarding “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” to state the following:
“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of health care and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC ...
On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC’s announcement, President Biden lifted the mask mandate that was required by staff and visitors of the White House.
While the CDC has issued this guidance, a patchwork of state and local policies or rules are popping up making clear that we are not going to be mask free quite yet. More importantly, the CDC’s announcement contained a big “EXCEPTION” by stating “except where required by federal, state ...
Historically, a majority of states have allowed employers to use restrictive covenants with physicians—and only a handful of states (among them: Delaware, Massachusetts, and Rhode island) have prohibited that practice in whole or in part. However, as discussed in recent blogs, the current trend is for state legislatures to pass new laws that regulate and limit non-compete agreements, often as they relate to lower wage employees or employees below certain income thresholds.
Now, in what may be a harbinger of future legislative efforts to regulate restrictive covenants in the ...
Contractors beware – the Illinois Department of Labor (IDOL) has ramped up audits of contractors as labor unions and related organizations flood the IDOL with “complaints. Remember, under the Illinois Prevailing Wage Act (IPWA), a prevailing wage “complaint” need not be verified or even submitted to the IDOL under penalty of perjury. The IDOL will investigate each and every “complaint” regardless of merit and, while historically the main focus of the IDOL was to ensure proper and full payment of the actual prevailing wage, it is now seeking to issue violations and debar ...
In the typical non-compete lawsuit, an employer seeks to block the defendant, often an ex-sales representative, from calling on or doing business with the company’s clients. However, in some cases, the defendant succeeds in taking some business, thereby raising the issue of monetary damages. So, how are damages calculated in a non-compete case?
In a recent decision, the U.S. District Court for the Northern District of Illinois addressed this issue. In Zurich American Ins. Co. v. Hill, the defendant insurance salesman admitted that he improperly did business with a certain ...
For the past several years, we have periodically reported regarding the proliferation of class actions and other litigation under the Illinois Biometric Information Privacy Act (BIPA).
Under BIPA, entities may not “collect, capture, purchase, receive through trade or otherwise obtain” or store a person’s biometric information without informing an individual in writing about the collection or storage of said information. Entities collecting biometric information must also specify the purpose for its collection and storage and how long it will be kept. Finally ...
The Illinois General Assembly is considering a bill (H.B. 117) that would make several amendments to the Illinois Secure Choice Savings Program Act, including extending the requirement to offer employees a retirement savings plan to employers with 5 to 24 employees. H.B. 117 was passed by the Illinois House of Representatives earlier this month and is currently pending in the Illinois Senate.
Currently, Illinois employers that have 25 or more employees and have been in business at least two years are required to participate in the state-run Illinois Secure Choice Savings Program ...
COVID-19 Pandemic Allows Unions to Make Inroads with Health Care Workers
For health care workers, the issues of staffing, wages and benefits are typically what unions have focused on in their organizing campaigns. Against the backdrop of the COVID-19 pandemic, these issues are heightened with the added urgency of worker safety. The realities created by the pandemic have and will likely continue to make their impact on health care workers – even prompting some who never may have considered union representation – to reconsider their position. For example, in ...
As we previously discussed, Illinois has moved beyond “ban-the-box” and now significantly restricts employers’ ability to consider criminal convictions when making employment decisions. (For more details see our employer’s guide and join our complimentary webcast on April 29, 2021.)
Illinois is not an outlier. Several states have enacted or are considering similar legislation. Below is a short summary of these state laws applicable to private employers. All of these statutes have exceptions. Note too, the fact that a state is not listed does not necessarily ...
In recent years, many states have enacted legislation directed at employment contracts containing non-compete and non-solicitation clauses. Illinois first did so in 2016 with the Freedom to Work Act (the Act), which bans certain Illinois employers from entering into non-compete agreements with low-wage employees.
Now, the Illinois General Assembly has taken the matter up again with additional proposed amendments to the Act.
Although the new legislation has not been finalized, some provisions that appear likely to be included in the final version are: income thresholds for ...
The Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 Component 1 Online Filing System is set to open on Monday, April 26, 2021. Private employers with at least 100 employees, and federal contractors with at least 50 employees and a contract worth $50,000 or more, must file their EEO-1 data for years 2019 (previously postponed due to the COVID-19 pandemic) and 2020, by Monday, July 19, 2021. Employers will be required to first file for 2019, then file for 2020 – after the 2019 report is submitted and certified.
As a reminder, EEO-1 reports require data from a ...
The American Rescue Plan Act (ARPA), signed by President Joe Biden on March 11, 2021, included a COBRA Subsidy covering 100% of COBRA premiums for “Assistance Eligible Individuals” during the period of April 1, 2021 through September 30, 2021. The 100% premium subsidy will be reimbursed to employers through their quarterly payroll tax returns.
Pursuant to ARPA, employers are required to notify certain individuals about potential eligibility and details of the subsidy by May 31, 2021. Individuals then have 60-days to elect. And although Notice 2021-01 described ...
The short answer is: Be careful what you wish for! During this COVID-19 pandemic, vaccinations have been at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)? Our Labor & Employment blog has been at the forefront for the first question and provides more information on COVID-19 vaccination developments and what legal risks come ...
Big Labor continues to use local, state and federal prevailing wage laws to target contractors they have a “beef” with. Since most prevailing wage audits are triggered by a complaint (including 3rd party complaints), trade unions and certain union-friendly organizations can easily turn in a contractor with the general assertion that the contractor is not complying with applicable prevailing wage law. While contractors and merit shop trade associations could do likewise, they typically don’t for obvious business reasons. Having concentrated my practice on ...
As we previously blogged about, the Illinois legislature passed Senate Bill 1480, which, in relevant part, provides that unless otherwise authorized by law, an employer may only consider an individual’s criminal conviction history if there is a substantial relationship between the criminal history and the position sought or held, or if the employer can show that the individual’s employment raises an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Governor Pritzker has now signed the bill into law – which went into ...
Private employers in Illinois now have more landmines to navigate as the state’s legislature pushed through SB1480 during its most recent “lame duck” session. Gov. Pritzker just signed the legislation into law today! While there are many substantive provisions and amendments to various laws contained in SB1480 (including new restrictions on the use of criminal convictions as we blogged about previously), the law also amends the Illinois Business Corporation Act (IBCA) and the Illinois Equal Pay Act (IEPA); resulting in unprecedented compulsory reporting of race ...
As the 2021 construction season gets underway, and with an increasing number of construction projects being completed with a mix of union and non-union subcontractors, many workers have legitimate questions about their rights and responsibilities on such mixed-staffed projects. These questions especially can arise when a “dual-gate” system has been established (creating a “neutral” gate for union contractors and a separate, “reserved” gate for non-union contractors), or when a union is involved in different types of activities at the jobsite, such as ...
Commercial air pilot and Air Force reservist Eric White filed a class action against United Airlines under the United Services Employee and Reemployment Right Act (USERRA) claiming United violated USERRA by not providing paid military leave to the same extent as other paid leave. The district court dismissed White’s lawsuit, but last month the 7th Circuit ruled that paid leave falls within the definition of “rights and benefits” employees are entitled to pursuant to USERRA. The case has been sent back to district court.
Generally, USERRA provides that any person who is ...
Almost one year after the enactment of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and with the second extension of pandemic unemployment assistance about to expire for millions of workers on March 14, 2021, the American Rescue Plan Act of 2021 (the “Act”) was signed into law by President Biden on Thursday afternoon, March 11, 2021.
The estimated cost of the Act is $1.9 Trillion, with $1,400 Recovery Rebate checks for each qualifying individual, the extension of supplemental unemployment benefits through September 6, 2021, as well as billions in ...
n a previous blog article, we alerted readers to the extension of deadlines related to COBRA, Special Enrollment, Plan Disclosures and more. The prior Joint Notice from the DOL and IRS provided suspension of all deadlines until 60 days after the expiration of the National Emergency, referred to as the “Outbreak Period.”
The issue requiring clarification arose due to the unanticipated length of the Outbreak Period. Much like all of us, the IRS and DOL did not foresee an Outbreak Period continuing well over a year later. As the one-year anniversary of the Outbreak Period ...
Given the “new normal” of remote work for many employees throughout the country, the question as to whether to allow an employee to work in another state – either permanently or temporarily – has become something employers are now scrambling to answer. However, it is not as simple as determining whether the employee can do the work remotely, there are numerous considerations and implications employers should be aware of if they have employees working in a different state than the location of their main operations.
First, employers should have clear guidelines and policies ...
Now that COVID-19 vaccines are starting to roll out, employees who have been vaccinated are beginning to question whether they are still required to wear face masks, practice social distancing, etc. In short, yes they are – according to the Occupational Safety and Health Administration, along with numerous state agencies, “it is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.”
So, the same workplace protocols ...
The Internal Revenue Service (IRS) recently published final regulations implementing changes made by the Tax Cuts and Jobs Act of 2017 (TCJA) to Section 162(m) of the Internal Revenue Code (Section 162(m)) expanding the scope of Section 162(m)’s compensation tax deduction limitation. Publicly held companies that already exceed or that may soon exceed the Section 162(m) $1 million deduction limit will need to carefully consider the impact of amended Section 162(m).
Section 162(m) generally disallows a tax deduction for compensation paid in excess of $1 million in any taxable ...
With H-1B season upon us, it is time to review the visa status expirations for foreign national employees. There may be some who will need to change visa status to H-1B for continued employment with your company. For example, an F-1 international student who is employed based on his/her optional practical training may need H-1B sponsorship. Now is the time to see if anyone will need assistance with an H-1B petition.
As you know, last year USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for their foreign national ...
On February 25, 2021, the U.S. Department of Labor (DOL) announced three new categories of individuals eligible to collect federally-funded unemployment benefits as the COVID-19 Pandemic continues. They are:
- Individuals who refuse to return to work that is unsafe or to accept an offer of new work that is unsafe;
- Certain individuals providing services to educational institutions or educational services agencies; and
- Individuals experiencing a reduction of hours or a temporary or permanent lay-off.
These changes are expected to take effect in late March, but could take longer to ...
Contractors, developers, architects, owners, project managers and even public bodies often ask the same obvious question when dealing with any type of prevailing wage ordinance or law, “what are my obligations?” While everyone involved in public construction projects want to comply with prevailing wage mandates, more often than not those involved in such projects are either oblivious to their responsibilities or are mistaken in their belief as to such responsibilities. This is not surprising in light of the great variance in prevailing wage laws, related rules and ...
A question that employers often ask when someone in the workplace reports COVID-19 symptoms or a positive test is, who is the employer required to notify? Typically common sense and CDC guidelines have been that employers must engage in contact tracing and notify individuals who were in “close contact” with the person. In recent months and weeks, local and state departments of public health have continued to issue guidance, and mandates, that employers must also identify and observe and sometimes try to interpret despite conflicting statements.
For example, in December 2020 ...
In follow up to our previous blog, the March 31, 2021 deadline is quickly approaching for employers to provide their California Pay Data Report to the California Department of Fair Employment and Housing (DFEH). Required reporting applies to private employers who meet the following three (3) requirements: (1) 100 or more total employees, (2) required to file a federal EEO-1 report and (3) at least 1 employee in California.
DFEH recently updated its FAQ’s related to the California EEO reporting requirements. The FAQ’s, along with DFEH’s User Guide, make it clear that ...
Congress is turning its attention to President Biden’s $1.9 trillion economic stimulus package, which is called the American Rescue Plan. Because the package includes enhanced unemployment benefits that are currently set to lapse in mid-March, Congress is under pressure to take action by then.
The following aspects of the proposal have a specific impact on employers:
- Restoration and expansion of emergency paid leave:
- President Biden has proposed reinstating and expanding the paid sick and family leave benefits passed as part of the Families First Coronavirus Relief Act ...
Illinois has long limited employers from considering the criminal history of an applicant or employee in making employment decisions. The Illinois Human Rights Act prohibits employers from considering an employee’s arrest history, for example. In recent years, Illinois’ “Ban the Box” law disallows employers from asking about criminal convictions prior to a job offer or before a candidate is selected for an interview and, therefore, assumed to be otherwise qualified for the position in question. Now, Illinois is poised to go a step further in banning the use of criminal ...
In response to an executive order signed by President Biden, OSHA recently issued updated COVID-19 guidance recommending that all employers adopt a formal COVID-19 prevention plan, incorporating the following activities and elements:
- Conducting a hazard assessment relating to COVID-19 exposure;
- Identifying control measures to limit the spread of COVID-19 (such as distancing, masks, barriers, work-from-home, staggered shifts, etc.);
- Adopting policies that encourage sick workers to stay home and not come into work;
- Communicating and training employees on the ...
The mis-named Protecting the Right to Organize Act (PRO Act) was reintroduced in the U.S. Congress on February 4, 2021. The PRO Act, which originally was introduced in 2019 and passed the House of Representatives in 2020, would completely change the landscape in the labor-relations world. You may recall that our recent blog post advised that reintroduction of the PRO Act likely was a priority of the Biden Administration and the revamped U.S. Congress.
Billed by Democrats as legislation to support workers’ rights, the PRO Act is less worker-friendly than Union-friendly. If ...
Last November I mentioned that the Trump Administration enacted over 400 immigration policy changes during its tenure. The changes added burdens to visa petitions, delayed processing, and made life more challenging for everyone in the immigration community.
Executive Order Highlights
President Biden signed a slew of prepared executive orders when he took office. Some of the orders that affect the immigrant community include:
- the preservation and plans to “fortify” the Deferred Action for Childhood Arrivals (DACA) program;
- cessation of border wall construction; and
- a ...
2020 was certainly a unique year for employers and employees. This includes complications with wage reporting.
Most employers have issued wage reports to their employees by the January 31st deadline and prior to the publication of this alert. These employers must now determine whether they are required to issue corrected Form W-2s.
Thanks to the Families First Coronavirus Response Act (FFCRA) (which required employers with fewer than 500 employees to provide paid sick and family leave for certain COVID-related reasons) certain employees received paid sick leave when unable to ...
Back in October 2020, we reported on the McDonald v. Symphony Bronzeville Park LLC decision,where the Illinois Court of Appeals for the First District ruled that the state Workers’ Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. The decision found that while the WCA provides remedies to workers that have sustained an actual injury, BIPA provides statutory, liquidated damages to employees who allege privacy right violations even when there is no injury and as a result, employees could continue to pursue BIPA ...
After the U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it had extended its ACT Mediation pilot program, the EEOC reversed course yesterday and abruptly concluded pilot programs relating to the EEOC’s conciliation and mediation efforts. The ACT Mediation pilot, which launched on July 6, 2020, expanded the categories of charges eligible for mediation, generally allowed for mediation to take place throughout an investigative process (rather than only before the investigation begins as is traditionally the case outside the pilot), and expanded ...
On the last day of 2020, the US Department of Labor (DOL) issued an opinion letter impacting employers using telework arrangements in light of the COVID-19 pandemic. While a vaccine is now rolling out and we will hopefully get the pandemic under control in 2021, this opinion letter provides guidance to employers that have had to institute remote and hybrid work policies and/or arrangements with their workforce.
Specifically, the opinion letter addressed two general scenarios:
- Employee has a parent-teacher conference in the middle of the day and works from the office, attends the ...
They say that the only constant in life is change. Here is a quick overview of the shift that we expect to see in the realm of labor and employment after President-elect Joe Biden takes office.
National Labor Relations Board (NLRB)
The NLRB is expected to have a Democratic majority as early as August 2021. The five-member Board currently has three Republican members, one Democrat, and one vacancy. The expectation is that the Biden administration will move quickly to fill the vacancy. In addition, the term of William Emmanuel, a Trump appointee, will expire in August 2021 – opening the ...
A Wisconsin state court recently issued a helpful reminder to employers operating in Wisconsin – and employers with employees working outside of their home state: always check local and state conviction records laws before using them in making any employment-related decision.
In Cree, Inc. v. LIRC, the employer rescinded a job offer to Derrick Palmer after discovering that he had multiple convictions for “domestic incidents,” including “2012 convictions for strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property ...
On December 22 the Federal Department of Labor (DOL) published a Final Rule changing the FLSA regulations for tipped employees. The Final Rule takes effect 60 days after publication. A caveat before we dig into the Final Rule; the change affects only federal law. As with all things wage-and-hour-related, many states, and some local governments, enforce more stringent requirements. Some jurisdictions prohibit tip credits entirely. This post focuses on the federal standard only. Employers must adhere to the requirements applicable to their particular business in each ...
A $900 billion COVID-19 relief bill passed by Congress late last night is expected to be signed into law by President Trump later today. In addition to an assortment of aid for individuals and businesses, the bill extends several provisions of the CARES Act passed in March, including the tax credit for employers providing paid leave under the Families First Coronavirus Response Act (FFCRA). However, the bill does not extend the mandate for employers to provide paid leave, set to expire December 31, 2020.
What Does This Mean?
Employers are not required to provide paid sick leave or paid ...
While it has not yet been fully passed and enacted into law, the full text of the Consolidated Appropriations Act, 2021 was released days ago and announced as having bipartisan support. Within the over 5,500-page Act, are several provisions designed to assist smaller businesses and those hardest hit by the economic challenges presented by the COVID-19 pandemic. As is common with legislation, the Act essentially presents only an outline of Congress’ intent and leaves relevant agencies to fill in the details of that outline. Pursuant to mandates in the Act, most agencies, such as the ...
In follow-up to our previous blog regarding mandating the COVID-19 vaccine in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) has now issued guidance addressing that very issue. According to the guidance, employers may ask employees if they have had the COVID-19 vaccine and require the vaccine pursuant to U.S. Centers for Disease Control (CDC) or other federal or state guidelines. However, any mandates must allow exemptions for employees who are unable to receive the vaccine due to disability or a sincerely held religious belief or practice.
The key ...
On November 17, 2020, the Equal Opportunity Commission (EEOC) proposed an update to its Compliance Manual’s section on Religious Discrimination. The proposed Manual is open for public comment until December 17, 2020, after which the EEOC will take those comments into consideration before publishing the finalized updated Compliance Manual. The EEOC Compliance Manual is not binding and has no force of law. Nonetheless, employers should take note of the Manual as it provides insight on how the EEOC may consider charges alleging religious discrimination claims in the future, as ...
The California Occupational Health & Safety Standards Board adopted rules implementing Emergency Temporary Standards (ETS) that went into effect on November 30, 2020. The ETS regulations apply to all employers, employees, and to all places of employment except the following:
- Workplaces where there is only one employee who does not have contact with other people
- Remote employees
- Employees covered by California’s Aerosol Transmissible Diseases regulation
In an effort to assist all impacted by the ETS regulations, California’s Department of Industrial Relations has ...
In a press conference held on December 2, 2020, the CDC announced their anticipated endorsement of a shortened quarantine time. Individuals without symptoms may end quarantine after seven (7) days, followed by a negative test result. Alternatively, and as a second option, individuals without symptoms may also end quarantine after ten (10) days without the need for a negative test. In regard to the seven (7) day option, a PCR or rapid test is acceptable and should be taken within 48 hours of the end of the quarantine period. Until now, the CDC has recommended a 14-day quarantine ...
Have you seen the 2019 viral video and articles about the young African American wrestler being told by a Caucasian referee that he either had to cut off his locs or forfeit the match? Or the resulting public outcry and negative media attention the referee and school received?
Since 2019, CROWN Act legislation has been gaining momentum. The CROWN Act stands for “Creating a Respectful and Open World for Natural Hair” and is legislation that specifically prohibits discrimination in employment based on hair texture, protective hairstyles – including braids, locs, twists, and ...
The Trump administration has enacted more than 400 immigration policy changes. That’s one change every 3.65 days the administration has been in office.
Weary from the whiplash of changes and weight of additional work, many are wondering how President-Elect Joe Biden will approach immigration policy.
Here are my thoughts on four issues affecting clients:
The Quickest Change Will Likely Be Better Visa Processing Times
COVID-19 will still slow processing as many U.S. Citizenship & Immigration Services (USCIS) employees are working from home. But without the anti-immigration ...
New COVID-19 cases are surging in Illinois, and Illinois is ramping up more restrictions by instituting additional measures throughout the state. Generally, these measures have the objective of limiting gatherings and encouraging people to stay at home, but do not rise to the level of a stay-at-home order. Illinois’ Phase 4 remains in place with the following new restrictions:
- Manufacturing (Implementation of safety guidelines):
- Additional COVID-19 training for all employees (even if previous training occurred)
- Employers to coordinate with IDPH to implement testing ...
Indiana Governor Eric Holcomb announced new coronavirus restrictions on November 13 that took effect on November 15, 2020 and continue through December 12, 2020. All businesses are allowed to be open subject to the restrictions in Executive Order 20-48. Executive Order 20-48 implements a county by county assessment that determines various measures, including crowd sizes, depending on the level of COVID-19 in that county (e.g. 25 people in red counties and 50 people in orange counties, with larger events needing approval from health officials). Businesses in higher risk ...
In response to the recent increased spread of Coronavirus in Ohio, Governor DeWine and the Ohio Department of Health have enacted several new Orders affecting all Ohio residents. Namely, in addition to existing protocols and guidelines for businesses, which remain in effect, the state has now instituted a 21-day curfew and restrictions for certain types of mass gatherings.
Statewide Curfew – Effective November 19, 2020
In order to help curb the spread of the coronavirus, the Ohio Department of Health has mandated a statewide curfew for all Ohio residents, from 10 PM to 5 AM daily ...
The State of Missouri has continued to resist imposing significant state-wide orders to combat the spread of COVID-19. However, with positivity rates on the rise and pressure increasing on health providers throughout the state, some localities have recently enacted enhanced restrictions on businesses and social gatherings to combat the spread.
One such locality is St. Louis County, which enacted the following health orders, which went into effect on Tuesday, November 17, 2020:
- November 12, 2020 – “Safer At Home” Order
- Residents are required to stay at home, unless to ...
Although Wisconsin has no statewide or industry-specific requirements, Governor Evers’ November 10, 2020 Executive Order “strongly encouraged” all businesses to take a number of precautions in response to the COVID-19 resurgence, including:
- Hold meetings and collaborate online or by phone, even if staff are physically present at the worksite
- Alternate work teams or stagger shifts
- Require staff, customers, and the public to wear masks, and require social distancing of 6 feet between all individuals at the worksite
- Prevent staff from entering the worksite if they ...
With the prospect of an FDA approved COVID-19 vaccine on the horizon, employers are already wondering whether they will be able to require their employees to get the vaccine. Because the pandemic has caused changes in other workplace rules, the answer to this question is not clear.
The Americans with Disabilities Act (ADA) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. This is ordinarily a difficult standard to meet unless the employer ...
As new information unfolds surrounding our understanding of COVID-19, and seeing that the odds appear to be increasing on who may actually get the virus, employers need to be vigilant in examining whether or not an employee contracts the virus at work or in the course of their employment. In order to assist employers in this exercise and help them possibly defend against legal challenges later (including workers compensation claims), the following updated questionnaire and HR checklist may be useful. The questionnaire and checklist should be kept confidential and used only by ...
The U.S. Department of Labor (DOL) issued additional guidance to employers as to the compensability of time employees spend attending voluntary training programs under the Fair Labor Standards Act (FLSA). In other words, if an employee attends a training program related to work, on his or her own volition and not under compulsion by the employer, must he or she be compensated?
The answer, according to the DOL: it depends.
Stepping back, the FLSA generally requires that non-exempt employees receive the federal minimum wage for all hours worked and overtime at 1.5x the regular rate ...
As COVID-19 rates are rising throughout the country, employers may want to review the safety measures they are taking to prevent spreading the coronavirus in the workplace. The U.S. Equal Employment Opportunity Commission recently released additional guidance on the interplay between COVID-19 and an employer’s legal obligations under the Americans with Disabilities Act. Key questions and answers regarding steps that employers can lawfully take to safeguard their workplace are summarized below:
- May employers ask all employees physically entering the workplace if ...
The US Centers for Disease Control and Prevention (CDC) has revised its guidelines to define a close contact with a COVID-19 carrier to include several brief exposures. The CDC now defines “close contact” with an infected person as “[s]omeone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.” The change now means that the 15-minutes of exposure time includes ...
On September 30, 2020, California Governor Gavin Newsom signed into law Senate Bill 973. This new pay reporting law applies to private employers in California: (a) with 100 or more employees; and (b) that are required to file an annual Employer Information Report (EEO-1) pursuant to federal law. Beginning March 31, 2021, and on an annual basis, covered employers will have to provide California’s Department of Fair Employment and Housing (DFEH) with pay data by specified job categories and by race, ethnicity and sex. We previously reported on this anticipated legislation ...
With the General Election on November 3rd rapidly approaching, registered voters are exploring various options for casting their ballots, be it through mail or in person early or on Election Day (November 3rd). One critical factor that may drive an individual’s voting plan is their work schedule, which raises the question of whether employers are required to give their employees time off to vote.
The answer to that question depends on the state where you work. A summary of the requirements from around the Midwest is below:
Illinois requires employers to give employees two paid ...
Even in the pandemic, the (high) number of class action filings based upon the Illinois Biometric Privacy Act (BIPA) remains steady. And, against that backdrop come two recent decisions that may impact how employers need to shift their defense strategies.
First, in McDonald v. Symphony Bronzeville Park LLC, the Illinois Court of Appeals ruled that the state Workers’ Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. The court distinguished the two, noting that while the WCA provides remedies to workers that have sustained ...
While many California employers are challenged on multiple fronts at the moment from the ongoing pandemic and wildfires, they nonetheless need to be mindful of new employment law measures recently signed by Gov. Gavin Newsom. The major changes include stronger family leave protections, new COVID-19-related reporting requirements and rules helping essential workers get Workers’ Compensation, tighter gig-work rules, and data collection requirements to help track race and gender pay gaps.
1. New Family Leave Law
On September 17, 2020, Gov. Newsom signed a bill that gives ...
The U.S. immigration system has always been something of an obstacle course. Recent developments have made it more like an intricate labyrinth with detours, hidden delays, and dead ends if you are not careful. Here are some recent developments and how they are affecting visa compliance and processing.
USCIS Budget Crisis
USCIS is a fee-driven agency. Fees pay 96% of its operating costs. It claims the coronavirus has caused a devastating budget shortfall. For four months they threatened to furlough 13,000 of their 20,000 employees. Ironically, a congressional inquiry showed USCIS ...
On September 17, 2020, the House voted 329-73 to pass the Pregnant Workers Fairness Act. The bill seeks to clarify the law and require employers to make reasonable accommodations for employees impacted by a known pregnancy-related limitation. Like the Americans with Disabilities Act, the bill calls for an interactive process between employers and pregnant workers to develop proper reasonable accommodations. The bill’s report states that such accommodations could possibly include, for example, providing seating, water, closer parking, properly sized uniforms and ...
The U.S. Department of Labor announced revised regulations interpreting the Families First Coronavirus Response Act (FFCRA) in response to a New York federal court decision declaring some FFCRA regulations invalid. The revised regulations become effective September 16, 2020, and include several changes and clarifications that employers should be aware of:
The Health Care Provider Exception. The DOL limited the “health care provider” exception (which excluded certain employees from FFCRA eligibility) to employees who are “capable of providing health care ...
The Families First Coronavirus Relief Act or “FFCRA” requires employers with less than 500 employees to provide paid leave to employees unable to work (or telework) for various COVID-related reasons. Particularly relevant as many schools open either virtually or with combination of in person and virtual instruction is FFCRA’s mandate for paid leave to care for children not in school or daycare due to COVID-19.
On August 27, 2020 the DOL added FFCRA FAQs 98-100 clarifying that:
- FFCRA is not triggered if the child’s school is open for in-person instruction but the family ...
With the prevalence of online consumer reviews and merciless labor organizations, companies and their executives are vulnerable to attack for good reason, bad reason or no reason at all. Managing the expectations of your consumers, and of your workforce, is an important place to start. Executives who identify the problem and work diligently to arrive at viable solutions will gain a head start toward preserving the status quo. Media coverage will no doubt accelerate the harm; it is never too late to challenge the story line with a well-crafted statement from the company president or ...
On August 31, 2020, the U.S. Department of Labor issued a new opinion letter shedding light on the application of the fluctuating workweek method for paying overtime wages required under the Fair Labor Standards Act (FLSA).
Under the FLSA, employers must pay nonexempt employees at least one and half times their regular rate for all hours in excess of 40 worked in an actual workweek. For employees who work variable hours each week, the employer may use the fluctuating workweek method to compute the amount of overtime pay owed to a nonexempt employee as long as the following criteria are ...
On August 28, the IRS issued Notice 2020-65 providing brief guidance on the payroll tax deferral announced in a Presidential Memorandum issued on August 8th. The Memorandum directed the Treasury Department to issue guidance for a deferral of the withholding and payment of the employee portion of Social Security taxes to be “made available” to employers. The IRS Notice, with very limited details, establishes the ability of an employer to defer the payroll tax, but leaves many questions unanswered.
Is it Required or Voluntary?
Under the Presidential Memorandum and IRS Notice ...
On August 19, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that due to delays in production of certain Employment Authorization Documents (EAD’s – Form I-766) that employees may use Form I-797, Notice of Action as valid List C #7 document for Form I-9 purposes. To be valid, the Notice of Action must have a notice date on or after December 1, 2019 through and including August 20, 2020. If an employee presents a Form I-797, Notice of Action as a List C document, then the employees MUST also present a List B document. The Form I-797, Notice of Action is NOT evidence of ...
In August 2019, SB0075 – the Workplace Transparency Act – was signed in Illinois. The Act created a number of new requirements for employers including, but not limited to, a new reporting requirement regarding adverse judgments and administrative rulings related to sexual harassment or unlawful discrimination brought under the Illinois Human Rights Act (IHRA), Title VII of the Civil Rights Act of 1964, or any other federal, state, or local law prohibiting sexual harassment or unlawful discrimination.
This new reporting obligation begins on July 1, 2020 for the period ...
On Monday August 10, 2020, Judge Ethan Schulman of the California Superior Court issued an injunction against Uber and Lyft ordering them to classify drivers as employees and not as independent contractors. The order follows a preliminary injunction lawsuit filed this spring by the State of California, along with a number of large cities in the state, where it was alleged that Uber and Lyft were in violation of California’s Assembly Bill 5 (“AB5”). A new state law that went into effect on January 1, 2020, AB5 codified what is known as the “ABC” test, which is commonly used ...
As our readers know, the Families First Coronavirus Relief Act (FFCRA) requires employers with less than 500 employees to provide paid leave to employees who are unable to work (or telework) for a variety of COVID-related reasons (including caring for children not in school due to COVID) though December 31, 2020. On April 6, the U.S. Department of Labor (DOL) issued a final rule implementing the FFCRA. Shortly thereafter, the State of New York filed suit claiming the regulations unduly restrict employees’ right to paid leave. This week a federal judge in the Southern District of New ...
Layoffs have become a reality for many businesses and employees in recent months, and this unfortunate trend seems likely to continue as we head toward the fall and winter months. The U.S. Supreme Court’s recent decision in Bostock v. Clayton County highlights additional considerations—beyond simply protecting LGBT employees—that businesses must factor into decisions regarding which employees to layoff, and which to retain.
As we previously wrote, the Supreme Court’s Bostock decision essentially held that the anti-discrimination protections of Title ...
With COVID-19 cases surging in numbers, the legal implications of face mask policies for businesses have taken center stage again.
First a quick recap, from my prior article, ADA Implications, I Don’t Want To Wear a Mask…:
- Businesses can require employees to wear masks at work and customers to wear face masks when coming into businesses;
- Businesses can refuse entry or ask customers to leave if they refuse to wear a face mask;
- For both employees and customers that say they cannot wear a face mask due to a disability or medical condition, the business must engage in the ADA interactive ...
In a decision issued yesterday, General Motors LLC, 369 NLRB No. 12 (2020) , the National Labor Relations Board declared that “[it] will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.”
Prior to yesterday’s decision, employees who engaged in obscene, racist, and sexually harassing speech in the course of activity otherwise protected by the NLRA, were protected by various setting-specific standards that provided leeway to ...
The Supreme Court declined to review a Ninth Circuit decision that would have answered a question currently splitting the circuits: may an employer consider employees’ salary histories in setting their current pay without violating the Equal Pay Act (EPA)? As discussed in our previous blog article on January 14, 2019, the EPA prohibits employers from paying wages to employees of one sex less than employees of the other sex for equal work. The EPA holds employers strictly liable for differential pay, regardless of whether the employer had discriminatory intent, unless the ...
On July 8, 2020 the United States Supreme Court ruled that the U.S. civil rights laws barring discrimination on the job do not apply to most lay teachers at religious elementary schools. The decision extends earlier Supreme Court rulings that shielded religious organizations from employment-discrimination claims by ministers, called the “ministerial exception.” This principle, which courts derived from the First Amendment, bars the government from telling a religious institution whom to choose as its faith leaders. Respecting that principle sometimes requires the ...
After schools and day cares closed in the spring due to the pandemic, employers and parents alike were hopeful that summer would bring a return to normalcy – especially in the form of camp for kids. Alas, that hope has not become a reality as many states have either delayed or prohibited the opening of camps. What are employers and working parents to do?
On June 26, the federal Department of Labor issued guidance stating that, under certain circumstances, an employee whose child’s day camp is closed as a result of COVID-19 may take leave under the Families First Coronavirus ...
As has come to be expected, the guidance regarding COVID-19 has changed again. This time the CDC narrowed the definition of who constitutes a “close contact” for purposes of tracing people with potential exposure to someone who has COVID-19.
While a “close contact” is still defined as someone who was within 6 feet of an infected person for at least 15 minutes, what has changed is when the exposure occurred during the ill person’s sickness. The relevant time is now from two days before illness onset (or, for asymptomatic patients, two days prior to specimen collection ...
It’s that time of year and even a pandemic will not stop Illinois, Cook County and the City of Chicago from increasing their minimum wages on July 1, 2020 as follows:
The July 1 change for the City of Chicago includes significant changes and new nuances that employers must be aware of, including different wage rates based on number and age of employees.
WARNING MAJOR CHANGES
However, the biggest change that employers must take note of does NOT pertain to the wage rate, but WHO will be subject to the City of Chicago’s Minimum Wage and Paid Sick Leave Ordinances. The Amendment to ...
On June 18, 2020, the Illinois Supreme Court ruled that enforcement of a union contract provision mandating the destruction of disciplinary records was against Illinois’ public policy of preserving and retaining public records. The decision settles an ongoing dispute between the City of Chicago and the Fraternal Order of Police, Chicago Lodge No. 7 (FOP) about the disposition of disciplinary records.
Since 1981, the parties’ contract has included a requirement that disciplinary records be destroyed after five years. Things changed in 1991 when a federal court in a civil ...
As written about previously, the Paycheck Protection Program Flexibility Act, while short in text, went to great lengths in helping borrowers extend their “covered period” and maximize forgiveness. As such, the previously issued forgiveness application needed to be revised.
Last week, on June 16, 2020, the SBA released a revised forgiveness application, a short-form and corresponding instructions for both. Generally, the short form is available for: 1) self-employed individuals; 2) those that did not reduce salaries by more than 25% and did not lay off any employees; or ...
On June 15, 2020 the United States Supreme Court handed down a momentous decision ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender employees from workplace discrimination. The decision consolidated three cases where the employees were terminated from their jobs: two separate cases involving the terminations of gay employees; and one case involving the termination of a transgender employee.
The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and ...
On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act. Notable changes will allow businesses more time to spend loan proceeds on permitted costs. This is significant relief for those businesses that were unable to continue operations and bring employees back to work. With many of those employees being lower paid, paying them to stay at home was not well received as it interfered with the higher amounts of unemployment compensation they could otherwise receive.
The significant changes allowed by the PPP Flexibility Act are:
- The period during which ...
Chicago employers take note – beginning July 1, 2020, you may be required to post work schedules at least 10 days in advance in order to comply with the Fair Workweek Ordinance. This seems like as good a time as any for a refresher on the Ordinance.
Are We Subject to the Ordinance?
Generally, employers must comply with the Ordinance if they meet each of the below conditions:
- They employ 100+ employees (both inside and outside of Chicago) or, for nonprofit corporations, 250+ employees;
- They employ 50+ employees who spend the majority of their time at work in Chicago and earn $50,000 or ...
U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns.
The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level.
Here are six situations I am helping clients navigate.
Work-from-Home Effect on H-1Bs
U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with ...
If your “essential” workforce is not already organized, consider this your wake-up call.
As this pandemic has worn on, and more “essential workers” have fallen ill to COVID-19, labor unions have become noticeably more active. Just last Monday, the AFL-CIO filed suit in federal court to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard, aimed at forcing the agency to mandate certain safety actions by employers.
Noticeably, the rhetoric from the AFL-CIO has been focused on “all workers” as opposed to “their ...
After the Workers’ Compensation Commission withdrew its proposed Emergency Rule declaring that any employee in an “essential industry” contracting COVID-19 will be rebuttably presumed to have contracted COVID-19 at work, the legislature and business groups met and worked through a proposed amendment to the Workers’ Compensation Act addressing the issue.
Under the proposed amendment, which appears set to pass, first responders, frontline workers, and most “essential employees” will be rebuttably presumed to have contracted COVID-19 at work, if they ...
Previously, OSHA issued guidance indicating that most employers only had to record or report confirmed COVID-19 cases when provided with objective evidence that an employee contracted COVID-19 at work. In practice, this put the burden on employees to submit evidence to employers establishing that their COVID-19 cases were contracted at work.
OSHA recently issued revised guidance on this issue, which goes into effect on May 26, 2020. Under the revised guidance, OSHA puts the burden on the employer to make a “reasonable determination” as to whether a confirmed ...
How cities, counties and states are actively enforcing their COVID-19 orders is all over the map, but criminal and/or civil penalties are on the books in some areas. For example, last Friday, May 15, the Illinois Governor directed the Illinois Department of Public Health (IDPH) to add an emergency rule called “Pandemic or Epidemic Respiratory Disease – Emergency Provisions.” The emergency rule authorizes IDPH to “take means it considers necessary to restrict and suppress dangerously contagious or infectious diseases, especially when existing in epidemic form.” ...
Late Friday, May 15th, the SBA released long overdue guidance on how to determine and apply for forgiveness of loans received under the Paycheck Protection Program. The application and corresponding instructions can be found here on the SBA website.
Within the application and instructions, several common questions have finally been answered:
- How do we calculate payroll costs? Do we go by pay period date or pay date? What if the 8-week covered period doesn’t match up with our payroll?
A payroll cost must be either incurred OR paid. Initially, the CARES Act indicated that it had to ...
On May 13, 2020, the SBA and Treasury issued additional guidance with respect to the necessity certification that borrowers must make when applying for a PPP loan. FAQ #46 provides a safe harbor for borrowers receiving loans which are less than $2 million and also indicates that, in the event the SBA determines that a borrower receiving a loan in excess of $2 million lacks an adequate basis for making the necessity certification, such borrower will be afforded the opportunity to repay the loan. Specifically, FAQ #46 states:
Question: How will SBA review borrowers’ required ...
The Wisconsin Supreme Court struck down Emergency Order 28, the Safer at Home Order, for failing to follow emergency rulemaking procedures in a lengthy 161-page opinion – effective immediately. So, what does this mean for Wisconsin employers?
Local Orders Still Apply
Local officials may enact their own stay-at-home orders – and indeed, some already have. Dane and Kenosha counties each issued orders adopting the majority of Emergency Order 28’s provisions, effective immediately and continuing to May 26, 2020. Brown County issued a similar order in effect ...
On April 29, 2020, the Department of Labor (DOL) and the Treasury Department issued guidance extending certain timeframes related to employee benefit plans due to the COVID-19 outbreak. The agencies acknowledge that plan sponsors, participants and beneficiaries may have difficulty meeting the standard timeframes due to the national emergency and the extensions are intended to help maintain group health plan coverage.
Relief for Participants and Beneficiaries
A joint final rule issued by the DOL and Treasury provides that all group health plans, disability plans, other ...
During the COVID-19 pandemic we have seen multiple shifts in views by the public and employees. Initially, the issue was what to do if an employee requested a face mask.
However, businesses are now facing different questions:
- Can you require employees to wear a face mask?
- Can you require customers or members of the public to wear a face mask when coming into your business?
What most do not realize is that both of these questions raise potential ADA issues.
EMPLOYEES – The short answer is, YES. A business can require its employees to wear a face mask or covering and other personal ...
Recent changes to the Illinois Human Rights Act (IHRA) require all Illinois employers to provide sexual harassment prevention training to all employees by December 31, 2020, and once per year thereafter – and tasked the Illinois Department of Human Rights (IDHR) with creating a model sexual harassment training program employers could use to meet that requirement. After several delays, the IDHR released its model sexual harassment prevention training program along with an FAQ. Now that we have the IDHR’s model training, all Illinois employers should begin planning ...
While some states are beginning to loosen their stay at home orders, others continue to only be open for essential business. On April 10th we reported on the relaxation of the CDC guidance for safety practices for essential workers. This included advice from the CDC that critical infrastructure workers may be permitted to continue to work, or return to work, following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented by the employer including pre-screening employee’s temperatures prior to starting work.
We ...
A couple of weeks ago, we examined two general factors that the Treasury will be examining to determine PPP loan forgiveness, namely whether at least 75% of the borrowed funds have been spent on “payroll costs” and whether employers maintained the same headcount and salary levels for full-time equivalent (FTE) employees.
On Sunday May 3rd, the Treasury issued additional guidance regarding the impact of layoffs on the headcount calculation for purposes of loan forgiveness. Specifically, FAQ #40 asked whether a borrower’s PPP loan forgiveness amount would be reduced if ...
In an update to our previous blog on Illinois extending its stay-at-home order through May 30, 2020, Governor Pritzker’s latest Executive Order on COVID-19 (Executive Order No. 2020-32), issued April 30, 2020, mandates that all businesses that have employees physically reporting to a work-site must post the guidance from the Illinois Department of Public Health (IDPH) regarding workplace safety during the COVID-19 emergency.
The guidance is found on the IDPH website, and informs employees that their employer should:
- Make sure that employees can maintain at least 6 feet of ...
With the constantly shifting state and local stay-at-home orders and the potential relaxing of these orders on the horizon, the question for employers still remains: What do we do if an employee has COVID-19?
Once an employer receives a report that an employee has tested positive for or is presumed to have COVID-19, the employer should do the following:
- Instruct the infected employee to stay home for the longer of the period of time recommended by his or her health care provider or the applicable health department or until 1) at least 3 days (72 hours) have passed since resolution of fever ...
On Monday, April 27, 2020, Missouri Governor Mike Parson announced “Phase One” of the “Show Me Strong Recovery Plan” to gradually reopen the economic and social activity in the state, beginning on May 4, 2020. As part of Phase One, the Missouri Department of Health and Senior Services issued an Order relaxing restrictions on businesses and social activities.
The relaxed restrictions are:
- Retail sales businesses can re-open, so long as the number of individuals in the retail location is limited as follows:
- if the location is less than 10,000 square feet, then 25% or ...
While most employers do not take issue with CDC and OSHA recommendations related to hand washing, sanitizing, personal protective equipment (PPE), or even employee screening – the social distancing aspect of these guidelines often provoke the greatest resistance from manufacturing employers: “We’re just not set up to operate that way.”
Over the last few weeks, we have all seen the headlines regarding Smithfield, JBS, and Tyson. The meat processing plants have become alleged hot beds for COVID-19, leading to plant closures. Last week, Smithfield workers sued the ...
On Thursday April 23, 2020 Governor Pritzker announced that he was extending and modifying the existing Stay at Home Order for Illinois, which was set to expire April 30, 2020. The new executive order will run through the end of May and will include the following modifications effective May 1, 2020:
• OUTDOOR RECREATION: State parks will begin a phased re-opening under guidance from the Department of Natural Resources. Fishing and boating in groups of no more than two people will be permitted. A list of parks that will be open on May 1 and additional guidelines can be found on ...
The Small Business Administration stopped accepting applications for loans under the Payroll Protection Program (PPP) late last week after quickly reaching the program’s $349 billion limit. Congress is debating appropriating additional funds for the program and businesses shut out last week may get another chance. But in the meantime, employers should consider the other options under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, as discussed below.
Employee Retention Tax Credit
An Employee Retention Tax Credit of up to $5,000 per employee is available to ...
Back on March 18th as we were entering the COVID-19 health crisis, we addressed EEOC guidance on the impact of the ADA on COVID-19 preventative measures. Fast forward to today, as our collective focus shifts to talk of “re-opening the economy,” the EEOC has updated its guidance. Uncertainty abounds as to whether it will be business as usual or a new normal. Undoubtedly though, employers will need to be mindful to avoid ADA pitfalls as restrictions are lifted, furloughed workers return and/or as new hires are brought onboard.
The EEOC’s updated guidance addresses the ...
NOTE: This is general information and should not be construed as legal advice. New guidance is continually being published. This information is only current through April 16, 2020.
So far, the CARES Act and related guidance published by the Treasury indicates that two general factors will be examined in determining forgiveness:
1: Were at least 75% of the funds spent on “payroll costs”?
2: Have you maintained the same headcount and salary levels for full-time equivalent (FTE) employees?
First factor to keep in mind: AT LEAST 75% of the PPP Loan Proceeds were used on “payroll ...
OSHA has released an interim enforcement plan explaining how it will prioritize and conduct COVID-related inspections. Given the high volume of COVID-related reports and complaints, OSHA intends to conduct onsite inspections for COVID-related fatalities that occur at “high risk” jobs only, such as first responders and those working in health care facilities, nursing homes, hospices, laboratories, and morgues. For virtually all other COVID-related illnesses and reports, including those working medium risk jobs (interact with the public) and low risk jobs (no ...
Back in early 2019, one of the very first actions taken by the new administration in Illinois was to amend the Illinois Prevailing Wage Act (IPWA). While many changes took effect in 2019, one material change was set to become effective April 1, 2020. This change requires all contractors to submit their monthly certified transcript of payroll via the Illinois Department of Labor’s electronic database. To be clear, the Certified Transcript of Payroll submission under Illinois’ Prevailing Wage Act is now electronic and should be utilized by all contractors beginning with the ...
The question many employers have faced in recent weeks is whether or not COVID-19 could be covered by workers compensation. The answer is generally… “UNLIKELY — except those who are directly involved in dealing with the pandemic — i.e. health care workers.” Under workers compensation law 101, an injured or ill employee bears the burden of establishing a causal connection between the conditions under which the work is performed and the injury/illness at issue. This has been the case even for employees contracting infectious diseases such as Hepatitis-B or tuberculosis. ...
An important question for employers in essential industries is whether its employees should come to work after potential exposure to COVID-19. The previous guidance from the Centers for Disease Control and Prevention (“CDC”) recommended employees stay home for 14 days after exposure. However, late on April 8, 2020 the CDC issued new guidelines — abandoning the former restrictions — for employers of critical infrastructure workers in essential sectors such as health care, manufacturing, food and agriculture, information technology, and transportation. The CDC ...
Due to COVID-19, everyone has been adjusting to daily life from home, including the youngest family members. Education is coming in the form of rapidly-developing technology that provides cybernetic classes and hangouts and the submission of coursework or “attendance” virtually. More businesses now have employees working remotely, using technology to stay in touch with co-workers and conduct meetings. However, this interfacing by schools, dance/music classes and management or team meetings may come with legal risk. The requirements of privacy laws, take, even the ...
Recent legislation providing COVID-19 relief to individuals and businesses includes provisions allowing more flexibility under retirement plans for individuals impacted by COVID-19. The CARES Act permits special hardship distributions of up to $100,000 from most tax-qualified retirement plans without early-withdrawal penalty taxes, increases the maximum 401(k) loan available for participants impacted by the pandemic and allows a delay in existing loan repayments. Required minimum distributions from defined contribution plans are waived for 2020.
As we now know, the Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave — under the Emergency Paid Sick Leave Act (EPSLA) — for specified reasons related to COVID-19 starting April 1. These reasons include: because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
Many states and local governments have now mandated shelter-in-place (SIP) or stay-at-home orders.
The question facing many employers is whether these SIP orders trigger the paid leave ...
This blog has previously reported on Governor Parson’s resistance to issue a state-wide “Stay At Home” Order in Missouri in response to the COVID-19 pandemic. He had previously issued a “Social Distancing” Order, effective through April 6, 2020, with individual counties and municipalities left to issue their own Stay At Home Orders to fill the void.
Now that has changed.
On Friday evening, the Governor announced that the State’s Department of Health & Human Services had issued a state-wide Order mandating that all Missourians “shall avoid leaving their homes or ...
The US Department of Labor (DOL) has posted its temporary regulations regarding the Families First Coronavirus Response Act (FFCRA). The DOL is scheduled to post its published version on April 6, 2020. The new regulations include parts 826.10 – 826.160 of the federal code and set forth the compliance requirements for employers with less than 500 employees for both the Emergency Paid Sick Leave Act (EPSLA) and the Expanded Family and Medical Leave (EFMLEA).
Additionally, the DOL continues to update its FFCRA FAQ’s and FAQ’s regarding posting requirements. At the time ...
The Department of Labor has issued Temporary Regulations on the Families First Coronavirus Response Act (FFCRA) to address an issue already causing employers fits – namely, can employees use paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) intermittently?
According to the DOL: it depends.
The employer and employee must agree to intermittent leave.
First and foremost, the regulations are clear that “one basic condition” applies to all employees who ...
On March 31, 2020, the Treasury Department and the Internal Revenue Service launched the Employee Retention Credit, designed to encourage businesses to keep employees on their payroll. The refundable tax credit is 50 percent of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19.
How to determine if your business qualifies for the Employee Retention Credit:
The credit is available to all employers regardless of size, including tax-exempt organizations. There are only two exceptions: state and local governments and their ...
The federal Worker Adjustment and Retraining Notification (WARN) Act and the patchwork state-law equivalents are often overlooked when employers are considering their options regarding potential layoffs or furloughs – either permanent or temporary. Employers should be cautioned that not abiding by the requirements of the WARN Act could lead to problems down the road.
The WARN Act requires employers with 100 or more employees to give an advance 60-day written notice to its displaced workers, certain third parties, and government bodies notice for a plant closing or mass ...
***Please see updated information on FFCRA regulations in our April 3, 2020 post.
A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.
The question ...
Businesses with a unionized workforce need to consider whether their responses to the COVID-19 pandemic constitute unilateral changes under existing work terms and conditions. An employer’s duty to bargain in good faith with its employees’ union encompasses many obligations, including the duty to not make certain changes to work terms and conditions without bargaining with the union. While a union is not likely to bring an unfair labor practice charge against an employer for “benevolent” unilateral changes, a union generally has a solid basis to bring an unfair ...
At the time of passage of the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) was tasked with issuing guidance on how a “small employer” might be exempt from providing paid sick leave and expanded FMLA benefits if doing so affected the business’s viability. The DOL has now issued guidance that addresses how this viability exemption can be met. Specifically, the DOL states that an employer, which includes religious or nonprofit organizations, with fewer than 50 employees (small business), is exempt from providing paid emergency sick ...
On March 28, 2020, the U.S. Department of Labor (DOL) issued an update to its “Families First Coronavirus Response Act: Questions and Answers” to address, among other things, the Families First Coronavirus Response Act (FFCRA) provisions that allow employers of “health care providers” and “emergency responders” to exclude such employees from the FFCRA’s emergency sick leave and expanded FMLA provisions. The specific questions that address the provisions for health care providers and emergency responders shown in this article can be found on the DOL ...
On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). A component of the FFCRA is the Emergency Paid Sick Leave Act (EPSLA), which requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to the COVID-19 corona virus starting April 1.
Generally, EPSLA requires covered employers to provide all employees with two weeks (up to 80-hours) of paid sick leave at the regular rate of pay when the employee is unable to work because he/she is quarantined pursuant with ...
For purposes of the Families First Coronavirus Response Act (FFCRA), the regular rate of pay used to calculate an employee’s paid leave is not necessarily the employee’s base wage or salary. According to the Department of Labor (DOL) FAQs regarding the FFCRA, the pay rate for an employee’s FFCRA leave is the average of the employee’s regular rate over a period of up to six months prior to the date the employee takes the leave. If the employee has not worked for the employer for at least six months, the regular rate used to calculate any FFCRA paid leave is the average of the ...
The U.S. Senate unanimously passed the CARES Act, and it is up for vote TODAY before the U.S. House of Representatives, with a promise of swift passage. You need to pay attention. This is about more than emergency relief.
Look at page 524 of the bill, which would apply to any mid-sized business that takes a loan under this Act:
“Any eligible borrower applying for a direct loan under this program shall make a good-faith certification that— ….
(X) that the recipient will remain neutral in any union organizing effort for the term of the loan.”
This means that if you employ between 500 ...
As many of you know, employers with 500 or more employees are exempt from the Emergency Family and Medical Leave Expansion and the Emergency Paid Sick Leave provisions of the Family First Coronavirus Response Act (FFCRA). Now that the Department of Labor (DOL) released FAQs regarding the FFCRA, we know a bit more about how the DOL will count employees for the purpose of meeting the 500 employee threshold – including that it will apply the Fair Labor Standards Act’s (FLSA) joint-employer analysis and the Family and Medical Leave Act’s (FMLA) integrated employer test in making ...
We are diligently reviewing the CARES Act for the sections that will most affect small and mid-sized businesses across the country. As we dive ever deeper into the Act, we will post individual section summaries to our web page. We know you are craving information on changes to small business loans and tax policy which could bring some relief to your business so we started with those.
PAYCHECK PROTECTION PROGRAM – FINANCIAL ASSISTANCE THROUGH “FORGIVABLE” SBA LOANS
The CARES Act expands eligibility for small business loans made under section 7(a) of the Small Business Act by ...
On March 25, 2020 the Department of Labor (DOL) released digital versions of the required notice of The Families First Coronavirus Response Act (FFCRA). Under the FFCRA every covered employer (covered employers include most public sector employers and all private sector employers with fewer than 500 employees) must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. Obviously, where should you post the notice if you are remote in whole or in part? According to the DOL, since many employers have all or ...
On March 24, 2020, the Department of Labor (DOL) released the much anticipated FAQs regarding the Family First Coronavirus Response Act (FFCRA). The DOL’s FAQs offer clarification on some of the more pressing questions that have been on employers’ minds. Of particular note is information relating to the counting of employees, commencement of the leave and compilation of the leave. Of major significance is that the FFCRA will become effective on April 1, 2020 (not April 2nd) and it is not retroactive (and, any benefits provided by employers now through March 31, 2020 cannot ...
On March 20, 2020, the Department of Homeland Security (“DHS”) announced that it would relax its “physical proximity” requirements associated with completion of Section 2 of the Form I-9. Employers can take advantage of this relaxed standard ONLY IF the entire workforce is completely working remotely. If there are employees physically present at the employer’s worksite, there is no exception to the in-person requirement for reviewing original documents for the Form I-9. However, note, DHS will look at the situation on a case-by-case basis if the employee cannot be ...
Our clients continue asking us the same two questions about COVID-19 as it pertains to their obligations under OSHA. We include those questions and our answers below:
1. What does OSHA expect me to do to prevent the spread of COVID-19 to my employees?
Answer: OSHA has provided guidance on steps employers can take to prevent the spread of COVID-19 in the workplace. This guidance appears to relate largely to employers outside of the health care industry. Industry associations have also put out their own guidance, including the AGC. The AGC guidance provides practical ...
You have dedicated employees that continue to courageously and diligently work the “front lines” during this time. Or, perhaps you’ve had to furlough or issue temporary layoffs to employees and you want to find some way to ease the burden on them. Perhaps it’s not out of the simple goodness of your heart. Perhaps it’s because you’re cognizant that self-isolating individuals are on social media more than ever and that everyone seems to be sharing information about the policies employers are implementing during this time.
Regardless of your motivation, when President ...
For the first few months of 2020, we watched COVID-19 spreading in other countries as if it were some sort of science experiment that would never reach the U.S. Now, with reported cases in 50 states and confirmed community spread in numerous locations throughout the U.S., we frighteningly watch the numbers increase. But how do we deal with our fears? Is fear a reason not to come to work when your job simply does not otherwise allow you to work from home? It’s important for employers to be the voice of reason amidst the panic and not feel bad for doing so.
Business needs to be able to ...
On March 24, 2020, Governor Tony Evers issued Emergency Order #12 entitled “Safer At Home Order.” The Order goes into effect at 8:00 a.m. on Wednesday, March 25, 2020 and will remain in effect until 8:00 a.m. on Friday, April 24, 2020. Until then, all individuals present within the State of Wisconsin are ordered to stay at home and may only leave their homes for the following functions as defined in the Order: 1) Essential Activities; 2) Essential Governmental Functions; 3) to operate Essential Businesses and Operations; and 3) to perform non-essential Minimum Basic ...
Our blog previously reported on various state and local social distancing and shelter-in-place orders including California, Pennsylvania and Illinois.
The State of Missouri mandated social distancing and restrictions on social gatherings and closed all schools. The City of St. Louis and St. Louis County have each issued separate stay at home orders for residents and businesses. Below are brief summaries and links to the actual orders.
Missouri’s Social Distancing Order
Governor Parsons ordered “Social Distancing” across the entire Show-Me State and ...
The Small Business Administration (SBA) has become a direct lender to small businesses for emergency working capital needs due to the economic injuries that Coronavirus (COVID-19) is causing. Small for-profit and nonprofit businesses in Illinois, Indiana, Iowa and Michigan and specified counties that are contiguous to these states in Wisconsin, Missouri, and Kentucky (Covid-19 Disaster Areas) are eligible for these SBA Economic Injury Disaster Loans. The application process is online through the SBA website.
Small businesses interested in such emergency funding can ...
On March 18, the president signed into law H.R. 6201. Division G of the law provides tax credits for businesses that compensate their employees for time off due to the Coronavirus pandemic. The purpose of the law is to help employees.
A tax credit is more valuable than a tax deduction. For example, a $10 credit reduces tax by $10. But the value of a $10 deduction depends on the taxpayer’s tax rate. If that is 36%, the value of the deduction is $3.60.
ADMINISTRATIVE EXPLANATION OF THE NEW LAW
On March 20, 2020, the Treasury Department, IRS and Department of Labor issued Release 2020-57 which ...
As we continue to grapple with the impact of the COVID-19 pandemic, and with potentially more drastic measures being imposed by health officials, the question becomes what is the impact on employers if a shelter-in-place order is issued. The answer: it depends on the order.
In response to the crisis, a number of states, counties and cities have imposed or are considering shelter-in-place orders. Generally, a shelter-in-place order means that individuals must stay in their residences and not leave “unless necessary for one of the designated exceptions.” The purpose of such ...
Earlier we reported on the issuance of “shelter-in-place” orders in California and Pennsylvania as well as a number of other communities. Effective March 21, 2020 at 5:00 pm CST and until April 7, 2020, Illinois will join the ranks and implement its own “Stay at Home” order. As we also noted earlier, “shelter-in-place” orders differ from one jurisdiction to another and some may be more restrictive. Illinois’ approach, however, is more permissive and gives businesses and individuals more latitude.
Pursuant to the Illinois order, all persons may leave their ...
With the ink barely dry on the president’s signature, employers are now turning to whether they need to and how to comply with the Families First Coronavirus Response Act (“Act”) (HR 6201). Since the law was signed by President Trump on March 18, 2020, the leave provisions are set to go into place on April 2nd. The US Department of Labor (“DOL”) shall provide a sample notice for employers required to comply with the emergency paid sick leave provisions within seven (7) days, and we may see additional guidance from the DOL in the near future.
First, note that the paid leave ...
As we previously reported, on March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. In the face of some pushback from the “small business community” and other “special interests,” the House subsequently revised the original legislation and delivered it to the U.S. Senate on March 16, 2020. Today, March 18, 2020, the U.S. Senate passed a modified bill for the President’s signature. The mandates focus on three (3) primary ...
As you know by now, COVID-19 is changing things on a daily, if not hourly or minute by minute basis. In reviewing this advice, you must understand that guidance will change as the COVID-19 pandemic evolves. As such, employers MUST continue to get up to date information from public health authorities on maintaining workplace safety.
The CDC, EEOC and World Health Organization (WHO) each have their own guidance on addressing the workplace and employees under a pandemic situation:
On March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. However, the legislation does not apply to any private sector employer with 500 or more employees. To be clear, the current legislation will regulate only those private sector employers who employ less than 500 employees. The Senate is expected to take up the bill early this week. The legislation would take effect within 15 days of enactment and expire on ...
Back on December 16, 2019, we reported on the issuance of new regulations by the Trump administration that effectively repealed the 2014 “Quickie Election” Rule issued by the Obama National Labor Relations Board (NLRB).
The 2019 Final Rule, set to take effect on April 16, 2020, was designed to facilitate employers’ efforts to fight private sector labor unions in election cases. It provided more time to react to and educate the workforce on the “Good, Bad & Ugly” of union representation. As we noted before, in issuing the notice of the new regulations, NLRB Chairman ...
As the new coronavirus (COVID-19) slowly appears outside China, employers should take precautions to protect their workplaces. To that end, the Centers for Disease Control (CDC) issued guidance for businesses and employers regarding COVID-19.
While the flu and COVID-19 have similar symptoms, COVID-19 is not the flu. Coronaviruses range from the common cold to SARS and MERS (Middle East Respiratory Syndrome). COVID-19’s symptoms are a mild to severe respiratory illness with fever, cough, and difficulty breathing. Symptoms may appear in two to 14 days after exposure ...
As employers seek to reduce costs and time in the hiring process through artificial intelligence (AI) tools, they should also be aware of potential legal risks that come with merging recruitment with technologic innovation. Employers are turning to AI to assist with many aspects of the recruitment and hiring process, including automating the sourcing of potential candidates, screening from an existing candidate pool, and using AI assessment tools, such as conversational chatbots and video interviewing tools that can measure a candidate’s strengths based on factors such as ...
Congress recently passed the Setting Every Community Up for Retirement Enhancement Act of 2019 (the SECURE Act), the largest package of retirement plan reforms in more than ten years. This sweeping federal legislation aimed at the private employer-based retirement system is not to be confused with the Illinois Secure Choice Act, passed in 2015, which created a state-run retirement savings program.
The SECURE Act includes a myriad of provisions from multiple bills intended to make it easier for businesses to offer retirement plans and for individuals to save for retirement. The law ...
On February 3, 2020 a coding flaw in a mobile app delayed the tabulation and reporting of the Iowa Democratic Caucus results.
This high-profile failure reminds us that technological glitches can show up any time but especially when a system is put to extreme use.
This reminder is the guiding principle for an H-1B preparation strategy this year. A sound strategy involves planning for glitches with back up measures to ensure as smooth an H-1B filing experience as possible.
New changes to the H-1B filing process may introduce several speed bumps to the process of filing petitions.
On January 31, 2020, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 10/21/2019. This new version contains only minor changes to the Form I-9 itself and to the Form I-9 instructions.
The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until April 30, 2020, employers can use either: (1) the new Form I-9, version 10/21/2019 or (2) Form I-9 with a revision date of 07/17/2017 N. On ...
In the face of billions of dollars of potential liability at trial, social media giant, Facebook, opted for the finality of a class-wide settlement—to the tune of $550 million—reached with Illinois users complaining of violations of the Illinois Biometric Information Privacy Act (BIPA). Facebook explained that the settlement was “in the best interest of [its] community and shareholders.” If approved by the court, the $550 million settlement will be the largest of its kind and will put an end to a case where Plaintiffs alleged that Facebook violated BIPA by collecting ...
2020 has already proven to be a busy year for changes in the Fair Labor Standards Act (FLSA). Below is a summary of the changes thus far:
- New FLSA Salary Threshold (Effective January 1, 2020)
As previously reported, as of January 1, 2020, the FLSA requires employers to pay all salary exempt employees at least $684/week (equivalent to $35,568 per year for a full-year worker).
2. Changes to the FLSA Regulations Regarding the “Regular Rate of Pay” for Purposes of Calculating Overtime (Effective January 15, 2020)
The FLSA generally requires nonexempt employees to receive overtime ...
On January 7th, the U.S. Department of Labor’s Wage and Hour Division issued its first Opinion Letter of 2020, and the Letter serves as a reminder to businesses that retroactive overtime payments may be necessary if non-discretionary bonuses are paid to non-exempt (hourly-paid) employees.
The scenario at issue in the Letter is that an employer had an announced policy through which employees were paid a $3,000 bonus after they completed ten weeks of training. A particular employee worked 40 hours per week in eight of those ten weeks. But in the fifth week he worked 47 hours, and in the ...
Following the 2017 Tax Cuts and Jobs Act, which made major changes affecting taxpayer withholding, the IRS announced it would be redesigning Form W-4. The new W-4 has officially been released, creating confusion and questions (at the time of this article the new federal 2020 W-4 can be found on the IRS website).
First and foremost, employers do NOT need to get all employees to sign a new W-4. According to IRS Publication 15, employers are to remind employees before December 1 each year to submit a new W-4 form if their withholding allowances have changed or will change for the ...
The average life expectancy in the U.S. has declined for three consecutive years. The Centers for Disease Control and Prevention (CDC) links that decline to three factors: the rise in drug overdoses, an increase in liver disease, and a rise in suicide rates. More than 2 million Americans from all walks of life suffer from an opioid use disorder (OUD), and about two-thirds of those people are in the workforce. This has a tremendous financial impact on employers: In 2016, U.S. large employers covered $2.6 billion on treatment for OUD and overdose, up from $0.3 billion in 2004.
OUD ...
While the Federal Motor Carrier Safety Administration’s (FMCSA) Clearinghouse Rule became effective on January 4, 2017, it has been a while so here is a reminder that the Rule goes into effect on January 6, 2020, just over a week away.
Despite delays, be assured the Clearinghouse website is now allowing employers to register. So before you open that first present or have an eggnog in your favorite moose mug to enjoy the holidays, make sure you are registered and understand the new requirements. While the Clearinghouse’s FAQ’s are extremely helpful in providing ...
This month, two federal circuit court of appeals reversed district courts’ grants of summary judgment in cases filed under the Uniformed Services Employment and Reemployment Rights Act (USERRA). With these twin cases, it seems as good of a time as any to provide a brief refresher on employee rights and employer obligations regarding those in military service.
On December 3, 2019, the Tenth Circuit reversed a decision by the U.S. District Court of Kansas in Greer v. City of Wichita, which dismissed an USERRA claim alleging that a city museum denied an employee an interview for a ...
It has been a busy week for the National Labor Relations Board which issued three decisions in quick succession on December 16 and 17. Each of the three is a clear win for employers.
In the first of the three, the Board restored employers’ right to stop deducting and remitting union dues after the expiration of the collective bargaining agreement requiring it to do so. Valley Hospital Medical Center, 368 NLRB No. 139 (2019). The Board held that so-called “dues checkoff provisions” exist only by virtue of the parties’ contract and therefore cease when that contract expires ...
On December 13, 2019, the National Labor Relations Board (NLRB) issued notice of new regulations designed to materially change what is commonly referred to as the “Quickie Election” Rule. The new regulations, set to take effect on April 16, 2020, will materially help employers combat labor unions in the private sector by primarily providing more time to react to and educate the workforce on the “Good, Bad & Ugly” of what union representation actually means to workers.
As a brief reminder… the “Quickie Election” Rule is a set of unprecedented regulations that the Obama ...
After the implementation of the General Data Protection Regulation (GDPR) in May 2018, U.S. academic institutions continue to grapple with compliance issues. Institutions must address areas where there is exposure to risk and train their employees to minimize that exposure.
One area of risk is the flow of data. Who on campus is the gatekeeper handling the data? Most universities will have a Data Protection Officer (DPO) as required by Article 37 of the GDPR. Other campus GDPR actors may include University Counsel, Information Technology Officers, Information Security ...
By now, you most likely have heard the phrase “OK Boomer.” What began as a meme, quickly went viral. Soon enough, Boomer’s themselves have been seen using the phrase in jest. Elizabeth Warren recently used it as the subject line of an email fundraiser (next to a winking emoji). The phrase was the subject of an entire editorial on the most recent CBS Sunday Morning episode. For those of you entirely out of the loop on this one: Dictionary.com lists “OK Boomer” as a “slang phrase” used “to call out or dismiss out of touch or close-minded opinions associated with the Baby ...
In Stanley Kubrick’s 1968 epic 2001: A Space Odyssey, HAL 9000, a fictional artificial intelligence machine, helps guide a space mission to Jupiter, but through the course of the film is revealed to be a villainous presence. Fast forward 50 years and, although artificial intelligence (AI) has yet to lead a crew of astronauts to Jupiter, AI now pervades our lives in many seen and unseen ways, including employment recruiting. For example, AI commonly helps companies sort through voluminous resumes to identify qualified candidates. By some estimates, roughly 40 percent of ...
On September 23, 2019 the IRS issued final regulations updating the rules governing hardship distributions from 401(k) and 403(b) plans. They are generally similar to the proposed regulations issued late last year and primarily reflect changes made by the 2018 Tax Cuts and Jobs Act and the Bipartisan Budget Act of 2018.
Some of the changes in the final regulations are mandatory, requiring employers to take action by January 1, 2020.
- Eliminates of the 6-month contribution suspension requirement
Beginning January 1, 2020, 401(k) and 403(b) plans will no longer be able to suspend ...
The US Department of Labor (DOL) has issued a proposed amendment to the regulation governing the fluctuating workweek (29 CFR 778.114). The fluctuating workweek can be used to calculate overtime for an employee whose hours fluctuate from week to week based on the nature of the job. The DOL’s proposed amendment is to clarify that there is no issue with paying a bonus, shift premium, or additional pay to someone who is being paid via the fluctuating workweek method, but such extra payment will increase the regular rate of pay for calculating overtime unless the additional pay ...
As Illinois set out to become the first state to legalize recreational cannabis through statutory authority, the legislative intent for protections for employers and the workplace were intended to include some of the strongest in the nation. However, when the dust settled and the statutory framework was analyzed, there appeared to be room for reasonable minds to have differing opinions on what the law actually meant for the workplace.
On one hand, could employers lawfully implement reasonable, non-discriminatory drug testing policies aimed at prohibiting applicants and ...
Flu season is here and that likely means employers can hear sneezing and sniffling up and down the hallways at work. Sick employees are less productive and their absences can disrupt an employer’s operations. Worse still, sick employees may come into work and spread an illness to coworkers, exacerbating the problem. According to the U.S. Center for Disease Control (CDC), recent studies show that flu vaccinations reduce the risk of flu by between 40 and 60 percent. Given this, employers may wish they could mandate that all employees receive a flu vaccination. But can they?
For those ...
In May 2018, the U.S. Supreme Court rejected the argument that the National Labor Relations Act (the “Act”) prohibits mandatory arbitration agreements that contain class and collective action waivers. But that has not stopped the National Labor Relations Board (NLRB), the federal agency that enforces the Act, from weighing-in and declaring other arbitration agreement provisions unlawful.
As a string of recent NLRB decisions makes clear—the newest of which is Beena Beauty Holding, Inc., 368 NLRB No. 91 (2019)—mandatory arbitration provisions, even in non-union ...
Last year we reported on Haven Healthcare, the venture started by Amazon, Berkshire Hathaway and J.P. Morgan. Amazon has now announced a pilot program for its employees in Seattle that puts a modern spin on employer provided health care.
Announced in September, Amazon Care provides telemedicine and in-person health care services. Employees can see a provider via a mobile app or website and text a nurse on any health topic. If follow-up care is needed, a nurse can make a home visit. Amazon contracted with a private practice for the nurse visits to collect lab samples ...
The holiday season is fast approaching. What should be a joyful time filled with family, friends and festivities is all too often the opposite for employers: a season filled with legal and logistical challenges with their employees.
One of these potential challenges is the employer’s legal obligation to accommodate employees’ sincerely-held religious beliefs. Title VII of the Civil Rights Act of 1964, as well as various state legislation such as the Illinois Human Rights Act and the Missouri Human Rights Act, prohibits employment discrimination based on religion ...
Long used to prevent former employees from gaining an unfair competitive advantage, covenants not to compete are increasingly under attack. California, North Dakota and Oklahoma essentially ban employee non-competes and recent legislation in Illinois, Maine, Maryland, Massachusetts, New Hampshire, Oregon, and Washington prevents their use with lower wage employees (the definition of which varies by state). Some laws go further, in Massachusetts, for example, a non-compete cannot be enforced against an employee terminated without cause and, in many cases, the employer ...
Colleges and universities have witnessed major developments in September with student teaching and research assistants at private schools losing the right to unionize but student-athletes in California gaining the right to be paid. U.S. higher education will see significant changes as a result.
In Major Reversal, U.S. Labor Board’s New Proposed Rule Would Deny Students at Private Schools the Right Unionize
In 2016, the National Labor Relations Board (NRLB) gave teaching and research assistants at private colleges and universities the right to unionize. Viewed as a major ...
The National Labor Relations Act (NLRA) requires employers with a unionized workforce to bargain in good faith with the union over mandatory subjects of bargaining (e.g., wages, hours, and other terms and conditions of employment). The duty to bargain continues during the term of a collective bargaining agreement (CBA) with respect to mandatory subjects of bargaining that are not covered by the agreement. An employer who makes unilateral changes to these terms without satisfying its bargaining obligations violates the Act, unless it can establish a valid defense. Until now ...
The Ninth Circuit U.S. Court of Appeals ruled in a California lawsuit that one of the most recognized franchises, McDonald’s, does not exert sufficient direction or control over its franchisees’ employees to be considered a joint employer under California statutory or common law and therefore is not liable for how the franchisee treats its employees.
In doing so, the Ninth Circuit affirmed the District Court’s ruling that McDonald’s was not an employer under California’s Labor Code definition under the “control” definition, the “suffer or permit” definition ...
Wellness programs are a popular employee benefit. Whether an employer already has a program in place or is considering implementing one, it should be mindful of the requirements of federal law.
The Health Insurance Portability and Accountability Act (HIPAA) divides workplace wellness programs into two categories: participatory and health-contingent. The latter are subject to specific nondiscrimination standards while the former are not.
Participatory programs give an employee a reward for engaging in a specific act. These include gym membership reimbursement; ...
In a follow up to our recent post, the US Department of Labor (DOL) has now issued its final rule regarding the salary thresholds for exempt status. The final rule will go into effect on January 1, 2020 and establishes the following rules:
- Salary exempt employees must earn at least $684/week (equivalent to $35,568 per year for a full-year worker) (which is slightly more than was proposed in March 2019 due to inflation/updated data but less than was proposed during the Obama Era);
- Employers can use non-discretionary bonuses and incentive payments that are paid at least ...
As employers scramble to meet the September 30, 2019 deadline to submit pay data for years 2017 and 2018, they can find some relief in knowing that the EEOC recently stated that it does not intend to collect pay data for 2019 or after at this time. According to the EEOC’s Notice of Information Collection, the EEOC will only request approval from the Office of Management and Budget (OMB) to renew its collection of Component 1 data (demographic data), but will not seek approval to continue collection of Component 2 data (pay data and hours worked data).
Since previously requesting ...
The United States Department of Labor (DOL) is expected to implement its proposal to amend the minimum salary requirements for exempt employees under the Fair Labor Standards Act (FLSA) no later than the end of 2019. As you may recall, a similar proposal was set for 2016 but was not implemented due to a court injunction. Under the FLSA, the current minimum salary threshold for exempt employees is $455/week ($23,660 annually) which is anticipated to increase under the DOL’s proposal to $679/week ($35,308 annually). Note, state law requirements may be more generous than the FLSA ...
In 2014, the Seventh Circuit Federal Appellate Court that covers federal courts in Illinois, Indiana and Wisconsin, held that an employee’s trip to Las Vegas qualified for FMLA leave and was protected by the FMLA because he was providing daily care to his terminally ill mother. Ballard v. Chicago Park District, 741 F.3d 838 (7th Cir. Jan. 28, 2014).
This case highlighted the fact that in looking at whether something like a trip to Las Vegas qualifies for FMLA leave, we have to look past the initial issue and ask whether it is to care for an immediate family member (spouse, child or ...
According to the U.S. Equal Employment Opportunity Commission (EEOC), retaliation claims continue to be the most frequently filed charges of discrimination at the federal agency by far. According to the EEOC’s Fiscal Year 2018 Enforcement and Litigation Data, retaliation claims made up 51.6 percent of all charges filed last year. Given their frequency, employers should be as proactive as possible in protecting themselves from these claims.
The Seventh Circuit recently affirmed summary judgment in a Title VII retaliation case, and in doing so sent a reminder to employers ...
The recent decision in Dyer v. Ventra Sandusky, LLC, issued by the U.S. Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee), should motivate employers to take another look at whether their attendance policies run afoul of the Family and Medical Leave Act (FMLA).
There are plenty of gray areas in the law, but it is generally clear that employees are not to be disciplined because they are absent for FMLA-covered reasons. That also means that employees should not accumulate attendance “points,” e.g., under a no-fault attendance ...
In May, we reported on Illinois becoming the eleventh state to permit recreational marijuana beginning January 1, 2020. Noncitizens in these eleven states and the District of Columbia may reasonably conclude that using marijuana in accordance with state law will have no bearing on immigration status. Unfortunately, that is a wrong assumption. Federal law controls immigration, and it remains a federal offense to possess marijuana. For the unsuspecting foreign national, this is a legal distinction that many will not understand. Customs and Border Protection (CBP) Officers ...
Under the Fair Labor Standards Act (FLSA), employees must be properly classified as either exempt or nonexempt, and nonexempt employees must be paid overtime (1½ times their regular rate of pay for all hours worked over 40 hours in a workweek). All compensation, including commissions and non-discretionary bonuses, must be included in the regular rate of pay for purposes of calculating overtime, unless the compensation is one of eight specified types of payment (e.g., holiday gift, birthday gift, discretionary bonus, and certain profit sharing payments).
Employees may be ...
On August 13, 2019, Illinois Comptroller, Susana Mendoza, signed an Executive Order (EO) aimed at enforcement of the state’s prevailing wage law (aka mandatory top line union wage/benefits scale) for “construction” projects receiving state money. On the surface, one would say “hey, that’s a pretty good idea.” But… the EO invites more questions than answers. More importantly, it encourages organized labor to target contractors that they have disputes with (without any proof or evidence of actual non-compliance with prevailing wage law) and the Comptroller may ...
In January 2019, we reported on the Illinois Supreme Court’s decision, Rosenbach v. Six Flags Entertainment Corp., where the highest court in Illinois unanimously found that an individual need not allege (or show) an actual injury to qualify as an “aggrieved” person under the Illinois’s Biometric Information Privacy Act (BIPA). This decision opened up the floodgates for additional, class action litigation under this Illinois statute.
Then, last week, in Patel v. Facebook, (a case that was originally filed in Illinois but later transferred to the Northern ...
MAJOR CHANGES TO ILLINOIS EMPLOYMENT LAWS: NEW MANDATORY SEXUAL HARASSMENT TRAINING, REPORTING AND DISCLOSURE REQUIREMENTS, RESTRICTIONS ON EMPLOYMENT AGREEMENTS, & SEVERAL OTHER MANDATES
ATTENTION Illinois employers of ALL sizes… Are you ready? Today (August 9, 2019), Governor Pritzker signed Senate Bill 75 – the Workplace Transparency Act – into law. Effective January 1, 2020, major new changes will forever alter how Illinois employers manage harassment and discrimination issues as well as other workplace controversies.
In fact, the changes will require ALL ...
This past February we reported that the Supreme Court agreed to review the Fifth Circuit’s ruling in Fort Bend County v. Davis on the viability of claims brought in federal courts where the claimant had not first filed her claim with the Equal Employment Opportunity Commission (EEOC). On June 3, 2019, the Supreme Court issued its decision holding that Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule that may be forfeited if not timely asserted.
Under Title VII of the Civil Rights Act of 1964, an employee is required to first bring his ...
With much fanfare, Illinois Governor J.B. Pritzker signed into law major amendments to the Illinois Equal Pay Act (IEPA) that now bar Illinois employers from asking job applicants or their prior employers about salary, wages or benefits history. On average, women in Illinois are paid only 79% of what men receive, according to information recently released from Gov. Pritzker’s office. Gov. Pritzker and Illinois legislators hope that the IEPA amendments will help correct the disparity. Gov. Pritzker told a crowd at the recent signing ceremony that “[w]e are declaring that ...
A federal court in Pennsylvania recently ruled that a former employee presented sufficient evidence to warrant a jury trial on a claim she was retaliated against after she resigned. The decision serves as a good reminder that anti-retaliation protections extend beyond the end of the employment relationship to protect former employees.
Cherie Leese complained of sexual harassment while employed by a state agency. She later filed a charge alleging she was issued discipline in retaliation for her report. The parties eventually settled. As part of that settlement, Leese resigned ...
Several years ago, a trend was emerging that consisted of third-party, private marketplaces where employers could have their employees purchase health care with an “allowance” of sorts. This “allowance” could be facilitated by an employer that set up a stand-alone Health Reimbursement Arrangement (HRA). The emerging trend was analogous to the way traditional pension plans evolved to 401(k)s. Then, before things could take off, the Affordable Care Act put a halt to it. Essentially, the ACA said that these stand-alone HRA plans broke the rules because they had ...
The state of California recently passed legislation that amends the definition of race under the California Fair Employment and Housing Act (the California State statute that prohibits employment discrimination, among other things) to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” The legislation defines “protective hairstyles” to include, without limitation, hairstyles such as “braids, locks, and twists.” In passing this legislation, California’s Legislature made clear that ...
In case you missed it, on July 1, 2019, the Chicago and Cook County Minimum Wages increased as follows:
· Chicago: $13.00 per hour for non-tipped employees and $6.40 for tipped employees.
· O’Hare and Midway Airport Certified Service Providers: $14.10 for non-tipped employees and $7.60 for tipped employees.
· Cook County: $12.00 per hour for non-tipped and $5.25 for tipped employees.
July 1, 2019 also marks the 2-year anniversary of the implementation of the Cook County and Chicago Paid Sick Leave Ordinances. While the full details are nuanced, these laws require all companies with ...
On June 26, 2019, the U.S. Supreme Court confirmed the continued viability of Auer deference, an interpretive doctrine that requires courts to defer to an agency’s reasonable reading of a genuinely ambiguous regulation. In confirming the use of Auer deference, the Supreme Court also narrowed its scope, setting out clear limits to courts’ use of this doctrine. This decision came in the case Kisor v. Wilkie, which involved an ambiguous regulation of a Department of Veteran Affairs rule.
In affirming Auer deference as a viable interpretive tool for courts to employ ...
Did you know that when a private sector employer has evidence that a union has lost support from a majority of its bargaining unit members, the employer can refuse to recognize the union as their bargaining representative? In 2001, the National Labor Relations Board (NLRB) ruled that employers can unilaterally withdraw recognition from an incumbent union based upon “objective evidence” (typically, a petition signed by at least half of the bargaining unit members indicating that they no longer wished to be represented by a union) that the union has lost majority support ...
Pre-employment drug screening for marijuana is starting to create exposure for employers. In several states, including Connecticut, Maine and Massachusetts, courts have ruled that employees have a valid claim against an employer for terminating or pulling a job offer because the employee tested positive for marijuana during the pre-employment stage, in order to enforce a drug-free workplace policy. In fact, Illinois’ new recreational cannabis law, effective January 1, 2020, infers that employers could face a claim under Illinois’ Workplace Privacy law for doing the ...
Illinois recently enacted a Collective Bargaining Freedom Act which bars local governments from establishing “right-to-work” (“RTW”) laws or zones. This most recent piece of legislation serves as a timely reminder of the differing responses by states to the right-to-work movement.
Section 14(b) of the National Labor Relations Act (NLRA) gives states the discretion to pass laws limiting the ability of unions to collect dues from non-members, commonly referred to as RTW laws. Critics claim that such laws lower wages and benefits. Supporters argue that RTW laws and ...
The New York Times recently published an article discussing trends in the area of unlawful age discrimination occurring at a time when the U.S. has the lowest unemployment rate in half a century. New York Times writer Patricia Cohen details, how despite a scramble to lure applicants to alleviate a massive shortage of workers, many workers over 50, and now even over 40, appear to find that they are considered too old for a new position. The allegations of age discrimination have unleashed a wave of litigation. Notably, in a settlement with various plaintiffs groups, Facebook ...
Organized labor wasted no time in securing Governor Pritzker’s signature on legislation that undoubtedly calls for the Illinois prevailing wage rate to fall in lock step with the area union contracts. Per the new law, now in effect, the prevailing rate of wages paid to individuals covered under Illinois’ prevailing wage law shall not be less than the rate that prevails for work of a similar character on public works in the locality in which the work is performed under collective bargaining agreements, or understandings between employers or employer associations and bona fide ...
On May, 1, 2019, Indiana Senate Bill 99 was signed into effect amending Indiana’s Wage Assignment Statute. The amendment makes the statute a bit more employer friendly by clarifying that, with proper authorization from the employee, an employer can deduct the cost of rental uniforms from an employee’s wages. Although the legislative intent behind the 2015 amendments to the Act may have been to allow deductions for rental uniforms, prior to the 2019 amendment, the statutory language only allowed employers to deduct wages for purchased uniform costs. In a 2018 case before the U.S ...
There is no duty of care to “not make a negligent recommendation to a prospective employer” in Missouri. That is the upshot of an April, 2019 ruling out of Missouri’s Southern District Appellate Court, Doe v. Ozark Christian College, which is sure to have Missouri employers and human resource professionals breathing a collective sigh of relief – at least for now.
In Ozark, the defendant is a religious college. The school educates students in ministry and from time to time makes recommendations to prospective employers – i.e., churches – regarding placement of ...
A U.S. Citizenship and Immigration Services (USCIS) memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.
The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018 without any notice or comment period required by the Administrative Procedure Act (APA). The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval. This requirement comes ...
The workplace is changing: Millennials, Generation Z-ers, and Baby Boomers looking to supplement their retirement income. These individuals are more interested in autonomy and avoiding bad managers, office politics and lengthy, non-productive staff meetings. Plus, the tax-savvy individual knows the economic advantage of having access to traditional business deductions through a Schedule C, rather than being limited to the standard deduction or itemizing as a W-2 employee would be.
More and more businesses also seem to be interested in the advantages of a gig workforce, also ...
t appears Illinois will become the 11th state to permit recreational cannabis. Once Governor Pritzker signs the legislation, as promised, beginning January 1, 2020, the Cannabis Regulation and Tax Act (“Act”), will allow adults (21+) in Illinois to possess and consume cannabis. While there is a lot “rolled” into the 600 plus page law (pun intended), there are significant employment pitfalls for employers with regard to enforcing drug free workplaces.
The Act expressly permits employers to adopt and enforce “reasonable” and nondiscriminatory zero ...
The CDC reports that half of all Americans will experience mental illness at some point in their lives. According to the National Alliance on Mental Illness, 46.6 million adults in the U.S., roughly 1 in 5, experience some form of mental illness in a given year, and for 11.2 million Americans each year, roughly 1 in 25, the condition is sufficiently severe and substantially limits major life activities. Yet, despite the wide prevalence of these conditions, our society continues to stigmatize mental illness. As a result, conditions often go untreated leading to reduced employee ...
EEO-1 report filers should prepare to submit Component 2 pay data for both calendar years 2017 and 2018 by September 30, 2019. As we previously reported, the U.S. District Court for the District Court of Columbia previously ruled that employers must submit pay data for calendar year 2018 by September 30, 2019. In this ruling, the court also presented the EEOC with the option to either collect pay data for calendar year 2017 or calendar year 2019. The EEOC recently announced that it will collect pay data for calendar year 2017. Pay data for both 2017 and 2018 will be due September 30 ...
In an effort to try and help root out discrimination, the Illinois legislature has followed California’s top-down approach of regulating the boardroom to ensure that decision makers include historically disenfranchised classes.
On March 29, 2019, the Illinois House sent HB 3394 to the Senate. HB 3394 is modeled after California Corporations Code § 301.3, which requires publically held corporations (domestic and foreign corporations that list their outstanding shares on a major U.S. Stock Exchange), which state on their SEC Form 10-K that the principal executive ...
In only the latest of potential blows to companies that collect or use biometric data, an Illinois Appellate Court has ruled that claims brought by employees of the Four Seasons luxury hotel for alleged violations of the Illinois Biometric Information Privacy Act (BIPA) are not subject to arbitration under the workers’ respective employment agreements with the hotel. Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645.
The BIPA was enacted to protect the privacy of individuals’ biometric data. It governs the collection, use, safeguarding, handling, storage ...
On April 25, 2019, the U.S. District Court for the District of Columbia ruled that employers must submit pay data by September 30, 2019. For a more detailed background on the case at issue, National Women’s Law Center v. Office of Management and Budget (OMB), please see our blog from last month. As a brief background, years ago the U.S. Equal Employment Opportunity Commission (EEOC) set out to collect pay data from employers in an effort to identify and address pay discrimination against women and minority workers. The EEOC already collects data from employers regarding the sex ...
Company sponsored volunteer activities foster a positive corporate culture and can improve employee engagement and morale. On March 14, 2019, the U.S. Department of Labor issued an Opinion Letter that makes wage and hour compliance associated with corporate volunteer campaigns a bit easier. The Opinion Letter clarifies that employers are not required to pay non-exempt employees for volunteer time outside their normal work hours so long as participation is truly voluntary and the employer does not direct the volunteer activities. The DOL further confirmed that an employer ...
Having handled countless prevailing wage disputes, the local, state or federal administrative agency assigned to administer compliance (i.e. the US Department of Labor) is the only government entity that can lawfully determine whether a contractor is in violation of an applicable prevailing wage law and push for debarment. Ultimately, a contractor who has been determined by a government agency to have violated its prevailing wage obligations (i.e. a clerical mistake, an accounting error, poor or missing paperwork) is a long way from getting on a “debarment list.” First, in ...
A currently pending federal case reminds us that hospitality employers could have claims for sexual harassment and discrimination brought against them based on the alleged inappropriate conduct of their customers.
The case is Hashway v. Starbucks Corp. (D.R.I., No. 1:19-cv-00125), filed on March 11, 2019. The plaintiff is a former female Starbucks barista. The case arose from the alleged inappropriate conduct of a male customer. The claim was that the customer allegedly would routinely come to the store and stare at the employee, make lewd and inappropriate comments about ...
The United States Supreme Court announced today that it will consider whether Title VII protects workers from discrimination based on sexual orientation. To date, several federal appeals courts have reached different conclusions on this issue. In 2017, the Seventh Circuit was the first to rule that sexual orientation discrimination was a form of sexual discrimination. The Second and Sixth Circuits followed in 2018. But in 2017, the Eleventh Circuit reached the opposite conclusion. And earlier this year, the Fifth Circuit reaffirmed its long standing “binding precedent” ...
Like a majority of U.S. states, Illinois’ legal stance on marijuana is becoming more tolerant and liberal – with regard to both medical and recreational use (also called “adult use”). As we previously reported on November 6, 2018, the Alternatives to Opioids Act of 2018, PA 100-1114 amended Illinois’ Medical Cannabis Pilot Program to allow individual prescribed opioid medication to enroll in the Illinois Opioid Alternative Pilot Program (OAPP). The OAPP allows these individuals to seek relief through the legal use of medical cannabis, rather than opioid ...
As we previously noted in our February 12, 2019 blog, increases to the minimum wage in Illinois are on their way. And as we also noted, drastic increases in the damages for which Illinois employers may be liable in cases of minimum wage and overtime violations are now in effect.
That said, there are a number of steps employers can take to minimize the risks of wage and hour lawsuits and liability, and they include the following:
- Train front line supervisors not to allow any off-the-clock work. Along with this training, employers must also make clear to all employees that they cannot work ...
The first all-female spacewalk was planned for Friday, March 29, 2019. News outlets included the event in their coverage of women’s history month and the strides women had made in male dominated industries. However, the Monday before the spacewalk NASA announced that only one female would be able to participate because NASA did not have enough properly configured spacesuits for two women. Attempting to modify an existing uniform in the time before the spacewalk would have involved some risk to the astronaut who wore it. While a spacewalk was completed, the team consisted of a ...
On April 3, 2019, the EEOC informed a federal district court that the earliest it could complete its collection of pay data from covered employers as part of their EEO-1 data reporting obligations is September 30, 2019. The court still needs to rule on the EEOC’s proposed plan and, therefore, employers have not received a final deadline by which to file the required pay data. However, this filing brings employers one step closer to an answer for an issue that has caused them justified concern given the significant time and resources that will be needed to collect this pay data.
Here is a ...
The Social Security Administration (SSA) announced in late 2018 that they would begin issuing SSA No Match letters again beginning in the Spring of 2019. Employers must be aware that the process has begun and the SSA No Match letters they could receive in 2019 look different from prior years. The letters will state “Employer Correction Request Notice” at the top and will not provide any employee names on the notice. A sample of the notice can be found on the Social Security website.
In order for the employer to determine what employees were identified as “mis-matches” by SSA ...
More than two dozen Illinois State Senators have signed on to co-sponsor SB0075, a bill to enact the Illinois Hotel and Casino Safety Act (the “Act”). Likely to pass in the coming weeks, the Act will impose new requirements on hotels and casinos operating in Illinois to provide “panic buttons” to certain employees and adopt specific anti-sexual harassment policies.
What Does The Act Require?
The Panic Button
The panic button requirement is directed at hotel or casino employees placed in certain positions that may involve interacting with guests alone.
Under the Act ...
Illinois employers that have 25 or more employees and have been in business at least two years will be required to participate in the state-run retirement savings program or offer another qualifying retirement plan later this year.
The status of the Illinois Secure Choice Program was uncertain last fall following an amendatory veto issued by former Governor Bruce Rauner making the program optional, instead of mandatory, as discussed in a previous blog post. The Illinois legislature generally opposed making the program optional, and chose not to act on the amendment ...
The Tax Cuts and Jobs Act, passed in December 2017, is continuing to hit employers and employees in unanticipated ways. The latest impact is on special parking spaces for executives, employees of the month and employee reserved parking spots. Generally, under the IRS Tax Code (“Code”), an employer is not able to take a tax deduction for qualified transportation fringes (“QTFs”) provided to an employee. This includes parking an employer provides to its employees (i.e., the parking lot where the employees park). However, the Code provides two exemptions allowing the ...
Many employers would appreciate a clear road map when traveling the often winding roads of reasonable accommodations under the Americans with Disabilities Act (ADA). However, there are no rigid routes for the interactive process. After an employee requests an accommodation, the employer must engage in a good faith and flexible dialogue that addresses the employee’s specific medical limitation, request, job position, and work environment, among other factors. That said, employers can find guidance in at least ten hard and fast rules on the reasonable accommodation process:
As with so many ADA questions, “it depends.” However, a pair of cases pending before the 7th Circuit Federal Court of Appeals (covering Illinois, Indiana, and Wisconsin) could provide further guidance.
The 7th circuit has not definitively ruled on whether obesity alone is a “disability.” Federal appellate courts for the 2nd, 6th, and 8th circuits (covering NY, CT, and VT; KY, MI, OH, and TN; and AR, IA, MN, MO, ND, NE, and SD respectively) have all concluded obesity is not a disability unless it is linked to some other disabling condition. In the first of two pending ...
Skilled Nursing Facilities (SNFs) are responsible for shielding residents “from abuse, neglect, misappropriation of resident property, and exploitation.” 42 C.F.R. § 483.12. This regulation implicates the employment process, since SNFs are prohibited from employing “or otherwise engag[ing]” individuals who have been “found guilty by a court of law,” had a “finding entered into the State nurse aide registry,” or had “a disciplinary action in effect against his or her professional license” as a result of “abuse, neglect, exploitation, mistreatment ...
As a follow up to our March 4th blog, three days later the DOL announced a proposed OT rule increasing the minimum salary required for an employee to qualify for exemption from federal overtime pay requirements. The proposed increase in salary level is from $455 per week ($23,660 annually) to $679 per week ($35,308 annually). In addition, the proposed rule includes the following changes:
- The proposal increases the total annual compensation requirement for “highly compensated employees” from the currently-enforced level of $100,000 to $147,414 per year (note, this ...
“Do I have to let my employees work from home?” With technological advances and with market demand for flexible work arrangements constantly increasing, the question comes up all of the time.
Generally speaking, the answer is no. Some positions just don’t translate to working remotely. For example, an auto mechanic or a doctor certainly cannot perform their job from their kitchen table. On the other hand, other positions, such as many white-collar office positions, can be well suited for remote work arrangements.
The key in allowing remote work is to communicate expectations ...
Last Fall, the Department of Labor (DOL) announced that it intended to issue a Notice of Proposed Rulemaking (NPRM) in March 2019 regarding the salary levels applicable to the executive, administrative and professional exemptions that exclude certain employees from the coverage of the Fair Labor Standards Act’s minimum wage and overtime provisions. The DOL has been reviewing the regulations at 29 CFR 541, which implement the exemptions, and is expected to seek public comment on the salary level before issuing a final rule.
Of course, we all recall the most recent final rule on ...
In a pair of rulings handed down on Tuesday, the Missouri Supreme Court expanded the reach of the Missouri Human Rights Act (“MHRA”) to encompass, under certain circumstances, LGBTQ individuals and additional types of evidence that can support MHRA discrimination and retaliation claims. Both cases – Lampley, et al v. Missouri Comm’n on Human Rights, et al and R.M.A., et al v. Blue Springs R-IV Sch. Dist., et al – should have a significant impact on employers in Missouri and how they evaluate the risks of employment actions against LGBTQ individuals moving forward.
As with most things in life, you should hope for the best, but plan for the worst in the event that a valued employee leaves to join a competitor. This post contains some helpful tips to keep in mind following such a move by a key employee.
I. Stay On Good Terms With The Former Employee Whenever Possible
Once your employee announces that he or she is making the jump to a competitor, ending the relationship on amicable terms can benefit you down the road. It may very well turn out that the employee’s experience and knowledge of past or ongoing projects become critical to the resolution of a ...
You may not remember… in 2013, then Governor Quinn signed into law an amendment to Illinois’ Prevailing Wage Act (IPWA) which sort of redefined what the PREVAILING WAGE RATE meant by adding one little word. Effective January 1, 2014, the IPWA defined “general prevailing rate of hourly wages” as hourly cash wages plus ANNUALIZED fringe benefits. By inserting the word ANNUALIZED, the law arguably changed.
For years, many contractors paid the prevailing wage fringe benefits as cash sums added to the employee paycheck based on prevailing wage hours only. Some contractors ...
One of the biggest challenges faced by health care providers is ensuring proper documentation in patient charts. Shortcomings in charting can result in lost revenue due to third party payers’ assigning a lower CPT code or refusing to pay a claim. Even worse, poor charting may prompt an equally poor survey result.
Convincing employees to stay on top of charting can be difficult and frustrating but taking appropriate action against those who fail to do so and documenting that action is critical. A recent decision by the U.S. District Court for the Western District of Wisconsin ...
Over 33 states and 150 cities, counties and municipalities have enacted Ban-the Box laws that prohibit employers from asking about an applicant’s criminal record or criminal history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment.
But did you know that Ban-the-Box laws can also impact your job posting or advertisement?
Yes, these laws can, and much like the Fair Credit Reporting Act (FCRA) and Americans with Disabilities Act (ADA), Ban the Box laws are being used by “professional plaintiffs” to go ...
The flu virus circulates all year round, although according to the Centers for Disease Control and Prevention (CDC), flu activity historically peaks in February. Here are a couple of flu-related questions frequently asked by employers:
Is an employee entitled to FMLA for absences due to the flu?
Maybe. The Family Medical Leave Act (FMLA) provides covered employees up to 12 weeks of unpaid leave during a 12 month period if the employee has a “serious health condition that makes the employee unable to perform” his or her job. A serious health condition is an illness that involves ...
The changes anticipated after the Illinois elections are steadily moving forward. On Thursday, February 8, 2019, the Senate passed Senate Bill 0001 (SB0001). SB0001 has now moved on to the House of Representatives and been assigned to the Labor & Commerce Committee. The word is that the House of Representatives is looking to vote on this within the next week and if passed move it on to the Governor for signature within the next two weeks. With the change in administrations, it is safe to say that it is only a matter of time before SB0001, or another bill increasing the minimum wage, is ...
On January 23, 2019, an en banc panel of the 7th Circuit Court of Appeals held that the Age Discrimination in Employment Act’s (ADEA) disparate impact protections do not apply to job applicants.
By way of background, 58-year-old Dale Kleber applied for CareFusion’s posting seeking an attorney with “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber had more experience than that, but instead of hiring Kleber, CareFusion hired a 29-year-old within the given experience range. There are a few key takeaways from this decision:
First, an en ...
The enforceability of arbitration agreements with employees in Missouri has been an area of uncertainty for some time. However, the Missouri Supreme Court recently offered some clarity in a decision sure to be cheered by employers seeking to keep employee disputes out of court.
In Easter Seals Midwest v. Soars, the court was asked to weigh in on the enforceability of an arbitration agreement an employee signed as a necessary condition of initial employment with his employer. The agreement in question was a standalone agreement, offered at the time the employee was hired, and ...
In an important development for employers defending against discrimination claims across the country, the Supreme Court has agreed to review the Fifth Circuit’s ruling in Fort Bend County v. Davis on the viability of claims brought in federal courts where the claimant has not first filed her claim with the Equal Employment Opportunity Commission (EEOC). There is currently a circuit split in federal appellate courts on this issue. Regardless of which side the Supreme Court ultimately takes, the Court’s decision will have a critical impact on the steps a claimant must take ...
The Department of Homeland Security (DHS) announced a proposed rule on November 30, 2018 that would require H-1B cap subject petitioners to register electronically with USCIS which would then conduct the annual H-1B lottery from the pool of timely-filed registrants.
The registration window would open 14 days before the H-1B filing window opens on April 1 and remain open for 14 days after that date. Petitioners selected during the lottery would be notified that they are eligible to file their petition and would have a 60-day window to do so.
The proposed rule would also reverse the order ...
The US Government was shut down for over a month, and the government’s E-Verify system was down from December 22, 2018, to January 27, 2019. During the shutdown, employers who are E-Verify users were unable to enter any of their newly hired employees into the E-Verify system. But E-Verify users shouldn’t fret. USCIS is giving you a grace period to catch up. The Department of Homeland Security and USCIS have updated the E-Verify website to address the shutdown.
The website states: “Now that E-Verify operations have resumed, employers who ...
In light of the current winter storm pounding the U.S. with snow and extreme subzero temperatures, this is a short reminder of when employees must be paid for emergency closures due to inclement weather.
Nonexempt Employees – Generally, hourly workers must only be paid for time they actually work. They do not need to be paid when the business is closed or closes early due to a weather emergency. As a side note, when paying a nonexempt employee on a salary basis, state laws may suggest treating compensation more like that paid to a salary exempt employee.
Exempt ...
As reported last November, the Illinois Supreme Court has had in front of it perhaps the seminal case, Rosenbach v. Six Flags Entertainment Corp., regarding Illinois’s Biometric Information Privacy Act (BIPA). Prior to landing before the Supreme Court, the lower (appellate) court had ruled that simply claiming a violation of the notice and consent requirements of BIPA was not tantamount to alleging a compensable injury. Branding such claims only “technical” in nature, the lower court found these were not cases or controversies. If that was all you had, said the ...
In November, thousands of Google employees walked out of work in protest against the company’s practice of compelling mandatory arbitration in sexual harassment claims. Frequently referred to as “forced arbitration” in the context of the current debate, Google responded by modifying its new hire letters to make mandatory arbitration optional for sexual harassment and assault claims. Several other big-name tech companies followed suit and ended the practice for sexual harassment claims.
Now on the heels of that initial success, tech industry employees are pushing for an ...
The Employee Retirement Income Security Act (ERISA) requires that plan sponsors develop and maintain a comprehensive plan document as well as a concise, understandable summary plan description (SPD) to communicate to employees what types of benefits are available under an ERISA plan, what the eligibility requirements are, how to receive benefits and who to contact if there are problems or questions. An employer cannot assume that because a plan is exempt from filing requirements, it is also exempt from maintaining a plan document. Even a small plan covering only 10 employees could ...
Last month, this blog discussed New Prime, Inc. v. Oliveira, a then-pending case before the Supreme Court that presented the question of whether arbitration agreements between trucking companies and independent contractor drivers fall within the “transportation” exemption to the Federal Arbitration Act (“FAA”).
This morning, the Court unanimously ruled in favor of Mr. Oliveira, affirming the First Circuit and holding that his independent contractor agreement with New Prime is a “contract of employment” under the FAA. The Court disregarded the ...
The Supreme Court may soon answer a question that divides federal courts: may an employer consider an employee’s salary history when setting pay without violating the Equal Pay Act (EPA)? The EPA prohibits employers from paying wages to employees of one sex less than employees of the other sex for equal work. The EPA holds employers strictly liable for differential pay, regardless of whether the employer had a discriminatory intent, unless the employer can show the difference in pay is based on a seniority system, merit system, quality or quantity of production measurements ...
We previously reported that in 2018, the U.S. Department of Labor (DOL) began issuing opinion letters again after nearly a decade of silence. While the legislature makes laws, the consequences of presidential elections flow into the executive agencies charged with administering and enforcing the laws.
As of the close of 2018, the DOL had issued more than 30 new opinion letters involving the Family and Medical Leave Act (FMLA) or Fair Labor Standards Act (FLSA), and those letters addressed a variety of topics including minimum wage and overtime for employees paid varying ...
Flu season is here and offers an opportune time to discuss the tricky intersection between the Americans with Disabilities Act (ADA) and employers’ efforts to require mandatory vaccinations and health screenings for employees. Some employers, especially those in the health care field who provide direct services to patients, require employees to pass a health screening or receive certain vaccinations either upon hire or at other periodic intervals. Employers should ensure that these efforts comply with the ADA.
The ADA allows certain health screenings and inquiries ...
Early in the New Year we often see employees switching jobs, which can trigger disputes over restrictive covenants in their employment agreements. As 2018 draws to a close, here are some things to keep in mind to protect your company, its customers, and its information against unfair competition from departing employees:
Assume the worst. We tend to assume people will comply with their contractual obligations. Employers should not assume a departing employee will comply with a restrictive covenant. Some employees forget they even have an employment agreement. Some think the ...
On Friday, December 14th, a U.S. District Court judge in the Northern District of Texas issued a ruling in Texas, et al., v. United States of America declaring the entire Affordable Care Act (ACA) unconstitutional, based on the requirement that individuals must buy health insurance or face a tax penalty. Previously, the U.S. Supreme Court upheld the ACA individual mandate as constitutional under Congress’s authority to tax Americans. But the Texas judge held that because the tax bill passed by Congress in December 2017 reduced the individual mandate penalty to zero, it is no longer ...
Around the holiday season, many employees take time off and businesses close down. Additionally, some businesses pay out bonuses to employees around the holiday season. All of these scenarios can impact overtime pay for non-exempt employees.
CLOSURE OF BUSINESS
Non-Exempt Employees
Non-exempt employees generally (exceptions follow) only need to be paid for hours they actually work – and not for holidays or weather-related office closings and are entitled to overtime for hours worked over 40 in a workweek. For example:
- Non-exempt employees do not need to be paid for New Year’s ...
When was the last time you conducted an HR audit for your organization?
We’re all busy and get distracted easily. Often times HR considers a thorough review of the Employee Handbook is enough to ensure all is well from a legal compliance perspective as to personnel policies and practices. Not quite. A closer examination of an employer’s forms, contracts, procedures, practices and actual day-to-day management is essential. In other words, a deeper dive into an organization’s HR-universe is necessary these days. In a world of increased workplace regulation and litigation ...
Exit interviews have been a mainstay of the HR world for years. They are most often viewed as a means of obtaining insights into employee satisfaction related issues, such as compensation, benefits and work environment. However, such interviews are a valuable component of a compliance program designed to prevent, detect and stop potential or existing fraudulent or otherwise illegal conduct. This is especially true in the health care industry.
Why health care? The media has regular accounts of various types of health care providers being investigated or sued under the False Claims ...
The Supreme Court recently heard arguments on an issue which will have lasting implications on the arbitrability of claims between employers and certain independent contractors. Where the Court lands will have significant impact on employers moving forward, not only with regard to the form of contracts employers offer, but also with regard to how they classify workers in the transportation field.
Currently, the Federal Arbitration Act (the “FAA”) authorizes transportation employers to include mandatory arbitration provisions in employment contracts, which can require ...
The IRS has issued proposed regulations on hardship distributions under section 401(k) and 403(b) plans (“Proposed Regulations”), addressing issues raised by the Bipartisan Budget Act of 2018 (“Budget Act”) and the 2018 Tax Cuts and Jobs Act (“Tax Act”). Plan sponsors need to consider administrative and plan amendment changes promptly.
There are two requirements for a permissible hardship distribution:
- The withdrawal must be made due to an immediate and heavy financial need; and
- The amount of the withdrawal must be limited to the amount necessary to satisfy that ...
In October of 2017, we first reported on the filing of a class action suit by a group of Chicago-area employees where plaintiffs alleged that their employer’s use of worker fingerprints for time-tracking purposes violates the Illinois Biometric Information Privacy Act (BIPA). Specifically, the employees claimed that their employer failed to properly inform them in writing of the specific purpose for which their fingerprints were being collected and the length of time their fingerprints would be stored. Plaintiffs also claimed the employer failed to obtain written ...
As the holidays are quickly approaching and the hustle and bustle of the end of the year begins, it is important to focus on compliance for 2019. Illinois employers need to ensure that they have the required Illinois postings displayed in their workplaces. The following Illinois posters are required for the designated Illinois employers:
- NEW Discrimination and Sexual Harassment Poster (Required to be posted by ALL ILLINOIS EMPLOYERS as of September 2018). In addition, employers should review the notice to employers which outlines information about the poster AND the ...
The U.S. District Court in Connecticut recently issued an instructive decision on the ever-increasing practice of emailing employees to notify them of changes to the terms of their employment. Financial services giant Morgan Stanley sent employees an email detailing its new mandatory Convenient Access to Resolutions for Employees (CARE) arbitration program. It reflected an effort by Morgan Stanley to expand mandatory arbitration to all employee disputes including previously exempted statutory discrimination claims. After one employee filed a federal lawsuit for age ...
As we draw closer to the end of 2018, let’s reflect a bit and look forward with purpose. The U.S. Equal Employment Opportunity Commission (EEOC) recently released preliminary FY 2018 sexual harassment data that is consistent with the #MeToo movement:
- Sexual harassment charges increased by more than 12 percent – the first increase in at least eight years;
- EEOC focused on harassment claims and filed 66 harassment lawsuits; and
- EEOC recovered nearly $70 million for sex harassment victims (up from $47.5 million in 2017).
These statistics do not include the many charges that ...
With the dust mostly settled after election night, we can now look at the impact the election will have on employment laws in Illinois, Indiana, Missouri and Wisconsin, and at the federal level.
Illinois: The major story in Illinois is the election of J.B. Pritzker as governor. In short, his election is likely to usher in greater infrastructure spending—including an increase in prevailing wage jobs—and more aggressive enforcement efforts by state agencies charged with regulating employers and protecting employees. Beyond that, minimum wage increases, expansions to ...
On August 28, 2018, Illinois Governor, Bruce Rauner, signed into law the Opioid Alternative Pilot Program which expands and modifies the Illinois Medical Marijuana law in several important ways that are relevant to employers.
First and foremost, the Pilot Program allows doctors to certify if an individual qualifies to use medical marijuana under the Opioid Alternative Pilot Program as an alternative to prescribing opioids (such as Codeine, Norco, Vicodin, Hydrocodone, Demerol, or Percocet). In this day and age, almost any serious injury in which there is surgery or pain issues ...
On Tuesday November 6th, slightly over five weeks after hearing oral arguments, the Supreme Court, by an 8-0 vote, ruled that small government units are covered under the Age Discrimination in Employment Act (ADEA) regardless of their size. In so doing, the Supreme Court resolved a circuit court split between the 9th Circuit and the 6th, 7th, 8th and 10th Circuits, where the latter courts ruled that the ADEA’s requirement of at least 20 employees for coverage of private-sector employers also applied to state and local governments.
In Guido v. Mount Lemmon Fire District, the ...
It’s that time again: Election Season. Employers must be aware of important legal issues when responding or reacting to politics in the workplace, as well as understanding workers’ rights to engage in the political process. This article provides key reminders to public and private employers to manage the workplace without accidentally violating relevant laws.
Imposing a blanket ban on political discussions may run afoul of the NLRA.
The National Labor Relations Act (NLRA), which applies to private unionized and non-unionized workplaces, protects non-supervisory ...
A recent decision from the U.S. District Court for the Northern District of Illinois sheds light on how to determine what job tasks are properly considered essential functions of a position under the Americans with Disabilities Act (ADA). A plaintiff alleging that her employer denied her a reasonable accommodation for her disability must prove that she is a qualified individual, which requires showing that she can perform all the essential functions of the job with or without an accommodation. In the recent decision, the court dismissed a police officer’s failure to ...
Effective January 1, 2019, the Illinois Wage Payment and Collection Act requires employers to reimburse “necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.”
Here’s what you need to know now to prepare
While the law requires reimbursement of expenses which are for the primary benefit of the employer, employers are not responsible for expenses due to (i) the employee’s negligence, (ii) normal wear, or (iii) theft (unless the theft was the result of the ...
On October 11, 2018, OSHA issued an additional memorandum to further clarify its position on incentive programs and drug testing. While the memorandum does not set out drastic changes to OSHA’s earlier rule and guidance, it does indicate that OSHA will take a more practical approach to incentive programs and drug testing than previously indicated.
With regard to incentive programs, it indicates that traditional incentive programs based on a lack of injuries during a particular time period will not be deemed violative of OSHA if the employer has measures in place to ...
Reasonable accommodation issues often require an employer to balance the needs of the employee requesting accommodation with the needs of other employees who are impacted by the decision. These issues can be magnified when an employee relies on a service dog. Most employers are unfamiliar with the issue, and courts and enforcement agencies provide little guidance on service dogs in the employment context. As a result, when the issue arises, many employers scramble to answer the most basic questions: Are we required to allow a service dog in the workplace? What if another employee ...
On August 13, 2018, as part of the John S. McCain Fiscal Year 2019 National Defense Authorization Act, President Trump signed into law the Main Street Employee Ownership Act, which was originally introduced by Senator Gillibrand and Representative Velazquez, a rare bipartisan achievement.
Employee Stock Ownership Plans (ESOPs) are often established using a loan to finance the purchase of company stock by the plan. ESOPs only infrequently default, so this is an area in which the government can be confident that the taxpayers will get their money back. The Small Business ...
Last week, the 7th Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) held that Section 14(b) of the National Labor Relations Act (NLRA) does not permit local governments to create local “right-to-work” zones that seek to ban union-only shops in the private sector. The court further concluded that bans on requiring union hiring halls and compulsory union dues checkoff agreements are also invalid under the NLRA.
In 2015, the Village of Lincolnshire adopted an ordinance that banned union-security agreements, within the Village, by forbidding any ...
In September 2018, the U.S. DOL published “updated” FMLA forms and the U.S. Consumer Financial Protection Bureau published updated FCRA forms.
DOL – Family and Medical Leave Act Forms
The DOL’s September 4, 2018 update is trivial: only the expiration date changed (now extended to August 31, 2021). There are no other changes to information, questions, or even layout (indeed, they maintain their prior revision date). Nonetheless, employers should promptly update their files with these new template forms.
The forms are all available from the DOL’s Wage and Hour ...
The National Labor Relations Board (NLRB) is taking more steps towards positive, significant change for private-sector employers:
Joint Employer Standard
CURRENT LAW: The Board may find that two or more entities are “joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). The primary inquiry is whether the purported joint-employer possesses ...
We’ve all heard Seinfeld’s Elaine Benes’s defense to a failed drug screen for opium: she eats a poppy seed muffin every day. With Coca-Cola recently announcing that it was exploring a cannabidiol-infused beverage line, companies should again buckle-up for the next wave of employment-based substance screening.
Is the Benes Defense valid? Could a poppy seed muffin a day actually result in a false-positive?
Maybe. The U.S. Department of Health and Human Services occasionally changes the cutoff levels for initial and confirmatory testing thresholds for ...
Illinois employers should be aware of amendments to the Illinois Nursing Mothers in the Workplace Act that expand the rights of employees who need to express milk while they are at work. Both before and after the amendments, the Act requires employers to provide a private space, other than a toilet stall, for mothers to pump at work. The amendments, which went into effect immediately when Governor Bruce Rauner signed House Bill 1595 on August 21, 2018, make some key changes to the law, each discussed below:
- Employers cannot require employees to pump during their break time. Formerly ...
The future of Illinois’ mandatory retirement savings program, Illinois Secure Choice, is up in the air after Governor Bruce Rauner issued an amendatory veto to change the word “shall” to “may” in key passages of the law, making the program optional, instead of mandatory. The program is scheduled to roll-out in a series of “waves” starting this November.
The Illinois Secure Choice Savings Act (Secure Choice Act), enacted in 2015, requires private employers with more than 25 employees that have been operating in Illinois for at least two years to participate in the ...
If you are an employer with employees or independent contractors in Massachusetts, it is about to get much more burdensome to protect your customer contacts and trade secrets. In sweeping legislation affecting all employers with employees or independent contractors in the Commonwealth, Massachusetts has altered the meaning, validity and enforceability of non-competition agreements.
The new law, which goes into effect October 1, 2018, requires that any non-competition agreement affecting employees or independent contractors in Massachusetts meet eight minimum ...
Constantly evolving employment risk, often brought on by a change of administration (federal or state), is one of the most difficult aspects of running a successful business. Overnight, a lawful employment practice might be interpreted as unlawful, necessitating change to avoid charges of discrimination, unfair labor practice charges, agency scrutiny, and other issues related to running the business.
Agency opinion letters – guidance on how an agency interprets a fact-specific situation under the laws it enforces – are one useful tool to stay abreast of these ...
On August 24, 2018 Governor Rauner signed PA 100-1066 into law thereby amending the Illinois Human Rights Act which revamps, and sometimes streamlines, discrimination complaints on the state level. This legislation, effective immediately, comes after months of hearings and recommendations from both the Senate and House Task Forces on Sexual Misconduct. I have had the privilege of sitting on the Illinois Task Force on Sexual Misconduct and take this opportunity to report on these amendments. During the course of the hearings, the Task Force heard testimony from business ...
On August 3, 2018, the Federal Deposit Insurance Corporation (FDIC) published its final rule on proposed modifications to the Statement of Policy under Section 19 of the Federal Deposit Insurance Act. Section 19 prohibits, without prior written consent from the FDIC, the employment of any person who has either been convicted of, or who has entered a pretrial diversion program (program entry) for, a crime involving dishonesty, breach of trust or money laundering.
Certain modifications in the final rule are intended to expand the FDIC’s de minimis criteria which obviate the ...
In July the EEOC announced the terms of a consent decree settling claims of systemic disability discrimination against a global metal products manufacturer. Pursuant to the terms of the decree, the employer will pay $1 million, reinstate affected employees, appoint an ADA coordinator, revise its policies and procedures, track accommodation requests, maintain an accommodation log, provide ADA training to all of its employees, and report its progress to the EEOC over the next two and a half years.
Where did the employer go wrong? According to the announcement, the employer ...
With the dust settling on the U.S. Supreme Court’s decision upholding the validity of class and collective action waivers in employee arbitration agreements, there is no better time to double-check that employee arbitration agreements are in proper form. A recent decision from the Seventh Circuit highlights one particular area for review: the employer’s name.
In Goplin v. WeConnect, Inc., the employee, Goplin, worked for WeConnect, and he signed an arbitration agreement at the beginning of his employment. Unfortunately for WeConnect, the arbitration agreement ...
Employers have had reason to exhale a bit in the Trump era of the National Labor Relations Board (NLRB). However, as demonstrated in a recent case involving employee Weingarten rights, long-standing federal labor principles and facts can nonetheless tilt a decision against the employer.
A Quick Refresher: The term “Weingarten rights” refers to the rights of union-represented employees to demand union representation during an employer’s investigatory interview that may result in discipline (as opposed to a meeting where discipline is simply being issued to ...
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) addresses, among other things, the use and disclosure of individually identifiable health information, referred to as “protected health information” or PHI. Many employers are confused as to how the HIPAA Privacy Rules apply to them. With requests for FMLA and accommodations for disabilities, employers are handling very sensitive and private information about their employees on a daily basis. While it is impossible to thoroughly address the multitude of issues within the HIPAA privacy rules in ...
On July 1, 2018, the Chicago Minimum Wage and Cook County Minimum Wages increased as follows:
- Chicago Minimum Wage increased to $12.00 per hour for non-tipped employees and $6.25 for tipped employees (Chicago Municipal Code §1-24).
- Cook County’s new minimum wage is $11.00 per hour for non-tipped and $5.10 for tipped employees.
IMPORTANT: Even if you are in a municipality that opted out of the Cook County or Chicago minimum wage or paid sick leave ordinances initially, remember to stay up to date as sometimes things can change. For example, after opting out of the Cook County Minimum ...
In the wake of the #MeToo movement, companies have been reviewing their sexual harassment training and investigation practices, and many states have considered the need for additional legislation offering protection to employees. For example, we previously covered legislation discouraging confidential settlements of sexual harassment claims in Tennessee, Washington, and New York. Recently, California enacted new legislation that protects employees who report sexual harassment from lawsuits claiming that they defamed the alleged harasser. Assembly Bill No. 2770 ...
On June 21, 2018, the US Department of Labor (DOL) published a final rule making it easier for a group or association of small employers to band together to buy health insurance. The rule allows employers that previously could only purchase small group health coverage to join together to purchase insurance in the less-regulated large group market.
The rule broadens the definition of an “association” that can act as a single “employer” to sponsor an Association Health Plan (AHP) under the Employee Retirement Income Security Act of 1974 (ERISA). Employers that pass a ...
In January we reported on a change in federal tax law aimed at discouraging confidentiality in sexual harassment and abuse settlements. Since then Tennessee, Washington, New York, and New York City have enacted sexual harassment prevention measures including discouraging confidential settlements.
In Tennessee and Washington it is now unlawful to condition employment on an agreement not to disclose workplace sexual harassment although confidential settlements are still permitted in both states. The Washington state law further clarifies that non-disclosure ...
Employees’ work schedules seem to be as fluid than ever. More and more, employers are bending to the employment market’s demand by allowing employees to work remotely from home and/or to reasonably set their own hours to accommodate personal obligations such as caring for children or loved ones. If done thoughtfully and effectively, these accommodations can lead to happier and more productive employees.
But it is not without potential pitfalls. A common concern for employers with employees who keep odd or fluid work schedules is whether they are required to compensate these ...
On June 27, 2018, the United States Supreme Court issued a groundbreaking decision in Janus v. AFSCME eliminating the public sector fair share requirement and thus changing the face of public sector labor. The Janus case, originating in the 7th Circuit, involved an appeal over the dismissal of a complaint that sought to invalidate agency fees and to reverse the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.
Over 40 years ago, the Abood Court established that public sector non union members could be charged or allocated agency fees or a “fair ...
As promised earlier this year, we have an update regarding the new health care company being formed by Amazon, Berkshire Hathaway and JPMorgan Chase, which still lacks an official name. In February, Warren Buffett announced that a CEO would be named within a year. The group later announced that a search was underway, and then, in early June, announced that a new CEO had been identified and would be named in two weeks.
True to their promise, on June 20, 2018, the triumvirate of Warren Buffett (Berkshire Hathaway), Jeff Bezos (Amazon) and Jamie Dimon (JPMorgan Chase) announced that Dr ...
We have seen a major increase in 2018 of Form I-9 audits from the Immigration and Customs Enforcement (ICE). First we saw 122 companies audited in California in February 2018. Next, we saw a number of companies in the Chicagoland area and throughout the Midwest receive Form I-9 audits in March 2018. Then, just weeks ago ICE made a number of arrests in the Chicagoland area.
This increase in activity is not showing any signs of slowing. In fact, we anticipate I-9 audits to increase and are aware of ICE hiring additional agents in the Chicago area to assist in the increase of Form I-9 ...
Many employer sponsored defined contribution (DC) plans qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”) maintain employer stock funds. Many such stock funds long antedate the Employee Retirement Income Security Act of 1974, as amended (ERISA).
In the wake of the Great Recession, plaintiffs’ counsel successfully prosecuted numerous ERISA fiduciary stock drop cases. The allegation was that fiduciaries breached their duties under ERISA by maintaining employer stock in a plan when they should have sold it.
Four years after a ...
Technology is great. I can use my smartphone to change a million TV channels without getting up (of course, there’s still nothing to watch until Game of Thrones returns).
Employers, too, are reaping the benefits of technology for the most routine areas of employee and facilities management – including timekeeping and building security. But with the transitions from handwritten and manually punched time cards to fingerprint scanner timeclocks, and mechanical keys to retinal scanners, employers face significant risk under privacy laws.
As a result, many states are beginning ...
Every employer offering a 401(k) plan is faced with decisions about what investment options to make available to participants. Investment options carry different risks as well as different costs. In designing available investment options, most plan sponsors rely on a third-party advisor. Industry estimates indicate that approximately 90% of these financial advisors are brokers, i.e., commissioned-based sales consultants.
Third-party financial advisors may or may not maintain fiduciary status in regards to the 401(k) plan (this depends on the specific terms of each ...
In an unprecedented fashion, an arbitrator recently issued an award limiting the scope of Public Act 095-0490, otherwise known as the Substitutes Act. In doing so, the City of Mattoon successfully fought, through Amundsen Davis attorneys Julie Proscia and Carlos Arévalo, and won the right to close their ambulance service. So why is this award important? This award now serves as a basis for municipalities to be able to have the autonomy to review their scope of services and determine which services are best for their community as opposed to the scope of services being dictated by ...
The U.S. Supreme Court ruled this morning that employers can enforce class action waivers included in employment-related arbitration agreements. An arbitration agreement is a contract through which an employee and an employer agree in advance to resolve any disputes that may arise through binding arbitration rather than in court. The issue before the Supreme Court was whether an employer could enforce an arbitration agreement provision requiring each employee to arbitrate his or her disputes individually rather than collectively or as part of a class action. The Court ruled ...
Last month, the United States Court of Appeals for the Fifth Circuit issued an opinion that provides a helpful reminder about the extent to which an employer may ask an employee to work during a leave taken under the Family Medical Leave Act (FMLA). In D’Onofrio v. Vacation Publications, Inc., a sales representative requested FMLA leave to care for her husband, who had suffered a major back injury. Her employer gave her two options – she could either go on unpaid leave or she could log on remotely a few times per week during her leave in order to service her existing accounts and keep her ...
At age 58, Dale Kleber was an out of work experienced attorney searching for full-time employment. He applied for a position as a “Senior Counsel, Procedural Solutions” that required the ability to assume complex business projects. The position description also stated that applicants must have at least 3 years but no more than 7 years of relevant legal experience. Kleber had more than 7 years of experience and he was not selected for the position. The employer filled the position with a 29-year-old applicant.
Kleber sued under the Age Discrimination in Employment Act (ADEA ...
YouTube’s experience on April 3, 2018, in which a non-employee with no direct link to the company entered the workplace and started shooting a firearm at employees, highlighted concern for an “active shooter” scenario in the workplace.
As a result of increased gun violence, state legislatures have been pushing gun control legislation, including laws that would ban bump stocks and high capacity magazines, raise the minimum age to buy a gun to 21, or even ban people from carrying, keeping, bearing, transporting or possessing an assault weapon. Some proposed legislation is not ...
On April 12, 2018, the Department of Labor (DOL) issued an opinion letter addressing the intersection between the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) when an employee needs multiple rest breaks throughout the day due to an FMLA covered serious health condition.
Background
The FLSA generally requires employers to compensate employees for all time spent working. Although the Act does not require employers to provide rest or meal breaks, it does regulate whether such breaks—if provided by the employer—must be paid as compensable ...
Unless we have been living under a rock for the last few weeks, it is likely that we may have wondered if former FBI Director James Comey could sue President Trump for defamation. Indeed, President Obama’s former Ethics Chief, Norm Eisen, recently tweeted that the president’s “false, malicious accusation of criminal conduct is libel [published defamation] per se by Trump. @Comey could sue-& might win…” Without weighing in on the viability of such a claim, however, it is prudent to review a few defamation principles to keep in mind.
Acknowledging that laws vary from ...
The Equal Pay Act can create significant exposure for employers, if not considered when setting female employees’ wages – especially if you are relying upon a female applicant’s prior salary history and there is a difference in the pay of similar male employees.
The Equal Pay Act is dangerous for employers because plaintiffs are not required to prove discriminatory intent by the employer. All a plaintiff must show is that there is a wage disparity for equal work requiring the same skill, effort and responsibility, which is performed under similar working conditions. Once a ...
In April 2018, the US Department of Labor (DOL) Wage and Hour Division, launched the six-month pilot Payroll Audit Independent Determination (PAID) program which provides a voluntary framework for employers to self-report potential FLSA overtime and minimum wage violations to the DOL and to resolve those violations without incurring additional penalties or liquidated damages. There are important benefits (and potential risks) to consider before signing up for PAID:
- The benefit of the program is that if an employer self-reports, the DOL will only require the employer to pay back ...
On April 2, 2018 in the matter of Encino Motorcars, LLC v. Navarro, No. 16-1362, 2018 WL 1568025 (U.S. Apr. 2, 2018), the Supreme Court rejected the long held principle that exemptions to the Fair Labor Standards Act (FLSA) should be construed narrowly and found that car dealership service advisors are exempt from the FLSA’s overtime-pay requirement. In a 5-4 decision, the Court held there was no reason or basis under the FLSA to narrowly interpret FLSA exemptions and that exemptions should be read equally as any other provision of the Act.
Impact – Car dealerships can ...
Back in November we reported on a federal judge ordering several members of management to turn over messages from their personal email accounts and counseled employers to be proactive in managing employees’ use of personal email for company business. The guidance set forth there rings true for text messages and other forms of electronic communication (e.g. WhatsApp, Slack, Trello and myriad others) as well.
As we explained in our prior post “document production” encompasses not only “documents” in the traditional sense, but all relevant information “stored in ...
When it comes to employee bonuses, employers often prefer “discretionary” bonus policies—as opposed to more rigid and definite policies and procedures that answer the questions of “who” is eligible to receive bonuses, “when” bonuses will be paid, and “how much” the bonuses will be.
A problem can arise, however, when the underlying method the employer uses to award bonuses remains consistent from year to year. Under Illinois law, for example, past practice—even in a non-union setting—can give rise to a legally-enforceable expectation that a given ...
Last week, the United States Court of Appeals for the Sixth Circuit held—for the first time—that discrimination based on transgender and transitioning status violates Title VII. Although the court has previously held that discriminating against transgender employees because of gender non-conforming behaviors constitutes gender stereotyping in violation of Title VII, this decision takes it one step further—protecting all transgender and transitioning employees regardless of any outwardly observable behaviors or characteristics.
In EEOC v. R.G. & G.R. Harris ...
A dangerous misunderstanding persists in the business community that an employer can choose to “1099” its workers, or classify them as independent contractors, so long as there is an agreement between the employer and employee and both are satisfied with the arrangement. This misguided belief can have dire consequences if blindly followed.
When a worker is classified as an independent contractor, the employer is not liable for federal tax withholding, payment of state unemployment tax, maintaining workers compensation insurance or compliance with state and federal wage ...
Just last week on February 26th, the United States Supreme Court heard arguments in Janus v. AFSCME, a case in the Court’s 2017 term with a potential of adversely impacting the viability and influence of public sector unions. The case, originating in the seventh circuit with Judge Richard Posner, involves an appeal over the dismissal of a complaint that sought to invalidate agency fees and to reverse the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.
Janus is the latest case to reach the Supreme Court challenging the 40 year precedent set ...
The U.S. Department of Labor, Employee Benefit Security Administration (EBSA) is responsible for the enforcement of the Employee Retirement Income Security Act of 1975 (ERISA). EBSA recently announced that, in 2017, by enforcing ERISA, it restored $1.1 billion to employee benefit plans. Of this amount, about 60% was from civil investigations and 40% from informal complaint resolutions.
Of course, the flip side of $1.1 billion going to employee benefit plans is $1.1 billion paid by employers, fiduciaries and their insurers.
This announcement from EBSA appeared roughly ...
What happens when you combine Amazon, Berkshire Hathaway and JPMorgan Chase? Apparently, a new nonprofit health care company. That was the news last month when the three companies announced that they are forming their own health care company to increase transparency for their employees.
Anyone involved with employee benefits knows that one of the most dreaded moments annually is getting the renewal quote for the health benefit plans. The quote starts the agonizing dance of trying to get the astronomical increase to a manageable number while calming the budgeting folks ...
As most turn their thoughts to love and romance this Valentine’s Day, we remind you of the potential liability that Cupid’s arrow may unleash. In this post-Weinstein and #MeToo period, the thought of office romance may catapult an employer into sheer panic. Although a recent CareerBuilder survey indicates that office romance is at a 10-year low, the stats are still telling: 36% of workers admitted to having dated a colleague in the past year. Of workers who had an office romance, 30% dated someone in a higher position. Yikes. A soured relationship at work can result in a ...
Though hacked systems are alarming, too often, data breaches come from much more obvious sources, such as computers without passwords (or weak ones), files left sitting out on desks, and even briefcases left on airplanes (like Department of Homeland Security analysis of terrorist threats at the Super Bowl). An employer’s exposure for data breaches can be significant. At minimum fines, civil suits (including class actions), lost trust and bad publicity, and remediation costs.
In 2017 alone, some of the major headline data breaches include the Paradise Papers and Panama ...
After a decade of rapid growth which saw the international student population increase 85 percent to over a million students, the number of newly arriving international students fell 3 percent in the 2016-2017 academic year.
President Trump’s campaign rhetoric and subsequent action as President have contributed to substantial declines in international student enrollment for the current academic year. Across the country the number of new international students declined an average of 7 percent according to a study of about 500 campuses by the Institute of International ...
If you are planning to file H-1B applications for your employees this year, now is the time to start the process. While the filing deadline is April 2, 2018, it’s not too early to begin the application, which involves several time consuming steps. As in recent years, the H-1B cap season may be met with an overwhelming number of petitions within a week of the April 2nd deadline. If you plan to file for an H-1B visa this year, starting early will enable us to provide your petition with the best possible shot at winning the lottery and obtaining a visa. We recommend starting to prepare the H-1B ...
On January 18th, the plaintiff in Severson v. Heartland Woodcraft Inc. petitioned the United States Supreme Court to review his case, in which he claimed that a multi-month leave under the ADA, beyond the Family and Medical Leave Act’s (FMLA’s) mandated 12 weeks off, constitutes a reasonable accommodation.
Back in September 2017, we reported on the seventh circuit’s decision Severson. In the case, Severson took a twelve-week medical leave under the FMLA to deal with serious back pain. Before this leave expired, however, he notified his employer that he was ...
Deferred Action for Childhood Arrivals (DACA) Renewals Resume
As of January 13, 2018, the United States Citizenship and Immigration Services (USCIS) has announced that, due to pending litigation and a federal court order, it is going to resume accepting and processing renewals for DACA recipients including Employment Authorization Documents granting work status. This only applies to DACA recipients who had previously been granted deferred action status and USCIS is NOT accepting first time DACA applications.
USCIS has indicated the following:
- If the person previously ...
In a recent decision with a nation-wide effect, the U.S. District Court for the District of Columbia struck down certain provisions of the EEOC’s Wellness Program regulations.
As we have previously discussed, workplace wellness programs generally provide certain incentives to employees as part of programs intended to prevent illness and encourage healthier lifestyles. But these programs can run afoul of various federal and state anti-discrimination laws, particularly the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act ...
On Friday, the Department of Labor abandoned its six-part test for determining whether an intern must be paid, and replaced with the more employer-friendly “primary beneficiary test.” This announcement came less than a month after the Ninth Circuit became the fourth federal appellate court to expressly reject the DOL’s six-factor test in favor of the primary beneficiary test.
Background
Under the Fair Labor Standards Act (FLSA) employers must generally pay employees minimum wage for all hours worked, and overtime for all hours worked over 40 in a week. The FLSA, however ...
Over the past few years, cities, counties and local municipalities have been enacting laws and ordinances increasing the minimum wage and requiring paid sick leave for employees. While there have been growing pains with how these apply to normal hourly non-exempt employees and tipped servers, do these apply to motor carriers and employees who are truck drivers? This can be the most frustrating legal response of all, “it depends.”
In most cases, minimum wage laws enacted by states follow the Fair Labor Standard Act (“FLSA”) and provide exemptions for motor carriers. Indeed ...
On December 22, 2017, the Tax Cuts and Jobs Act was signed into law as P.L. 115-97. Hidden about halfway into the law, in Section 13307, is an amendment to the tax code on itemized deductions for individuals and corporations. Generally, current law permits employers to treat the costs of settlement payments and related attorney’s fees as a tax deductible business expense. However, the recent amendment eliminates the deduction in certain situations, stating:
No deduction shall be allowed under this chapter for — (1) any settlement or payment related to sexual harassment or ...
On December 22, 2017, the Internal Revenue Service (IRS) announced a 30-day extension of the deadlines for certain information reporting requirements under the Affordable Care Act (ACA).
In IRS Notice 2018-06, the agency announced a 30-day automatic extension — until March 2, 2018 — for employers and insurers to provide 2017 IRS Forms 1095-C (Employer-Provided Health Insurance Offer and Coverage) and 1095-B (Health Coverage) to employees. The original due date was January 31. This extension is virtually identical to the extension provided last year for 2016 Forms.
Thirteen years ago the National Labor Relations Board issued its decision in Lutheran Heritage Village-Livonia, 343 NLRB 646, which held that facially neutral work rules violated the National Labor Relations Act if employees would “reasonably construe” the rule to restrict the employees’ rights to engage in protected concerted activity under Section 7 of the Act. Following that decision, the Board used the “reasonably construe” standard to invalidate even the most well intentioned work rules. See e.g., T-Mobile USA Inc., April 29, 2016 (finding that ...
2017 is coming to an end, and with somewhat of a Bang! for labor relations moving forward under Trump’s NLRB. In a matter involving PCC Structurals, Inc. and the Intern’l Assoc. of Machinists & Aerospace Workers (19-RC-202188), the NLRB this month overruled its 2011 decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, and reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases. The essence of the 2017 decision is that the National Labor Relations Act mandates ...
With only 30-days to respond, employers should be watching their mail for Affordable Care Act (ACA) employer mandate penalty letters (IRS Letter 226J), coming before the end of 2017.
Recent updates to the “Questions and Answers on Employer Shared Responsibility Provisions (ESRPs) Under the Affordable Care Act” on the Internal Revenue Service (IRS) website indicate the agency is gearing up to begin enforcement of the ESRP provisions of the ACA, commonly known as the employer mandate. According to Q&As 55-58, “Making an Employer Shared Responsibility Payment,” the IRS ...
While marijuana use remains unlawful under federal law, 30 states and Washington D.C. have legalized some form of medical use. Eight states and Washington D.C. have legalized recreational marijuana for adults. More cities, states, and counties have taken steps towards legalizing adult recreational use and increased tax revenues, or to decriminalize possession of small amounts (this might be seen as a tacit legalization without the tax benefits).
Illinois may be next to legalize adult recreational use, with a majority of those polled in the state supporting legalization, and ...
At this time last year, employers across the country were preparing for implementation of the DOL Final Overtime Rule, which would have more than doubled the minimum salary level for exempt employees. At the eleventh hour, employers were granted a reprieve when the Federal District Court for the Eastern District of Texas temporarily halted implementation, which was subsequently made permanent in August of this year.
In the interim, a presidential election occurred. And with the change in administration came uncertainty about what—if any—action the DOL would take ...
The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021 identified “Equal Pay” as a priority area that demands focused attention. The EEOC’s recent press releases show it is actively fulfilling this strategic mission.
In the third scenario, the EEOC obtained a judgment against a pizza restaurant for violating the Equal Pay Act. Two high school friends-one male and one female-applied to be “pizza artists” and both were hired. However, the female applicant received $0.25 less an hour in starting pay. When she realized this discrepancy, she contacted the ...
During the past several weeks, it seems that every day has featured new allegations of sexual harassment involving celebrities, politicians, and others in positions of power.
These allegations invite a question to employers: Do you want to be in the news for all the wrong reasons? No? Good, because this moment in time should impress upon all businesses the importance of vigilant enforcement of anti-harassment policies.
The first step in enforcement is ensuring that anti-harassment policies are properly communicated to all employees—from entry-level to C-Suite. All ...
BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.
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On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.
Last week, a federal judge presiding over a sex discrimination case ordered several members of management to search their personal email accounts and turn over all relevant information. The ruling serves as a reminder of the sheer breadth of discovery in litigation, especially in the context of “electronically stored information” or “ESI.”
As a general rule, parties to federal litigation “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense…” Federal Rule of Civil Procedure 26(b)(1). State courts apply ...
Eight states, the District of Columbia, and more than 30 municipalities have enacted laws mandating differing paid leave requirements. Localities such as New York and San Francisco, have enacted some of the most aggressive sick leave requirements in the country. Employers doing business within the City of Chicago have also been left to deal with a trifecta of sick leave laws in 2017: the IL Employee Sick Leave Act, the Cook County Paid Sick Leave ordinance, and the City of Chicago paid sick leave ordinance. All of this has resulted in an administrative nightmare for employers ...
Inquiry into Illinois Applicant’s Salary Inquiry Remains Lawful – For Now.
We previously reported that Governor Rauner’s August 25, 2017 veto of HB 2462 amending the Illinois Equal Pay Act related to applicant salary history inquiries was subject to be overridden by the General Assembly. On October 25, 2017, as predicted, the Illinois House voted to override the veto by a vote of 80-33 (less than the initial vote of 91-24 to pass the bill). On November 9, 2017, the Illinois Senate voted against overriding the veto. While 29 senators favored overriding the veto, they were seven ...
Add salary history to the growing list of topics that may be off limits on employment applications and during interviews, depending on where your business operates.
California joins a growing list of jurisdictions banning salary history inquiries. On October 12, 2017, California Governor Brown signed Assembly Bill 168, which prohibits employers from seeking or relying upon applicants’ salary history and using such information as the basis for establishing compensation. The new law takes effect on January 1, 2018.
Like ban-the-box legislation (banning inquiries into ...
One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.
Opioid use in the United States has started to take on a whole new form ...
An employer who allows its employees the “flexibility” to self-schedule time off the clock must make sure that it is paying its employees for all time worked. And beware, under the Fair Labor Standards Act (FLSA), “hours worked” is not limited to only that time an employee spends performing his or her job duties. Short breaks of twenty minutes or less are also counted as hours worked and must be paid.
The Third Circuit Court of Appeals recently held as a bright-line rule: Where breaks of twenty minutes or less are in question, the time must be paid. The court adopted the U.S ...
Addressing an employment issue of interest in an increasingly digital world, the Seventh Circuit Court of Appeals (which has jurisdiction over lower federal courts in Illinois, Indiana, and Wisconsin) recently upheld a prior ruling that the City of Chicago was not liable for paying wages for certain employees’ off-duty work time.
In the case of Allen v. City of Chicago, employees who alleged they were not compensated for off-duty work performed on their mobile devices were not entitled to recovery for that unscheduled, overtime work. Agreeing with the trial court’s ...
Technology allowing employers to use biometric data tools to track attendance and maintain worksite security abounds. Purveyors hype the advanced technology’s ability to accurately validate time entries, eliminate fraud, and better control access to the workplace or to sensitive areas within the workplace. If these systems are so readily available, it must be legal for employers to use them, right? As with seemingly everything involving HR and the workplace, it depends.
Last week, a group of Chicago-area employees filed a class action suit, alleging their employer’s use of ...
Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.
The U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that ...
On June 28, 2017, HB 2462, an amendment to the Illinois Equal Pay Act, passed both chambers of Illinois General Assembly. The bill would have made an employer’s inquiry into an applicants’ wage, benefits, and other compensation history an unlawful form of discrimination. Even worse for Illinois employers, the bill would allow for compensatory damages, special damages of up to $10,000, injunctive relief, and attorney fees through a private cause of action with a five (5) year statute of limitations.
On August 25, 2017, Governor Rauner vetoed the bill with a special message to ...
If I had a dollar for every time this conversation occurred…
Lawyer: Do you have a copy of your investment policy?
Client: Who would have been the one to write that? Us? Our broker/advisor?
Or, this one…
Lawyer: Is your investment advisor serving as a fiduciary to your plan?
Client: What does that mean? How would I determine that?
The most common area in which 401(k) plans are being scrutinized these days is in their selection and design of investment offerings. While participants often get to direct how their funds are invested, that direction is limited to only those investment ...
On September 5, 2017, the Acting Secretary of Homeland Security rescinded the memorandum issued during the Obama administration that had established the Deferred Action for Childhood Arrival (DACA) program, announcing that it will be phased out over the next six months, allowing Congress time to craft a “permanent legislative solution.”
Ending DACA will affect not just the people covered under the program, but also thousands of employers nationwide. A controversial Obama-era policy, DACA has been a program where certain people who came to the United States as minors without ...
In a case pending in the U.S. District Court for the Southern District of Florida, Equal Employment Opportunity Commission v. GMRI Inc., the EEOC recently argued that a restaurant chain acted in bad faith, and should be sanctioned for “spoliation” of evidence because, the EEOC claimed, it intentionally destroyed hiring data. It argued the destruction of evidence “prejudice[d] EEOC by opening the door for GMRI to attack EEOC’s statistical and anecdotal evidence, and to rely upon otherwise impermissible [defendant] favorable proxy data.”
Among the allegedly destroyed ...
Previously, we reported to you on the U.S. Department of Labor’s (“DOL”) Final Rule that raised the minimum salary threshold required to qualify for the Fair Labor Standards Act’s (“FLSA”) “white-collar” exemptions (executive, professional and administrative classification) from $455 per week ($23,660 annually) to $913 per week ($47,476 annually) as of December 1, 2016 (see our prior articles: U.S. DOL Publishes Final Overtime Rule and; Are you ready for December 1st? The FLSA Salary Changes Are Almost Here).
The Obama administration’s goal ...
On August 2, 2017, the United States Court of Appeals for the Seventh Circuit issued a decision in Nischan v. Stratosphere Quality, LLC providing clarity on what constitutes an employer’s “constructive notice” of harassment.
Michele Nischan worked as a project supervisor at Stratosphere Quality, LLC, a company that provides third-party inspection and quality-control services to car manufacturers. Nischan alleged that an employee of one of the client manufacturers “relentlessly” sexually harassed her by routinely rubbing himself against her and making ...
Much has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies that have, for many years, raised no issues or controversy, to be violative of the National Labor Relations Act (NLRA).
Last year, the NLRB struck down various policies in a handbook issued by T-Mobile, including one that encouraged employees to be professional and maintain a “positive work environment” in T-Mobile USA, Inc. v. NLRB, No. 16-60284 (5th ...
The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.
Employers today can find themselves in a seemingly untenable dilemma when ...
The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) have withdrawn the proposed rulemaking aimed at identifying and treating obstructive sleep apnea in workers in safety sensitive positions. The withdrawal, officially published on August 8, 2017, states that both agencies believe the programs currently in place are the appropriate avenues to address the safety hazards presented by obstructive sleep apnea.
Although it will not be issuing additional rules regarding sleep apnea, the FMCSA will consider updating the January ...
On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.
Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that ...
Claims of negligent hiring, training, and retention is alive and well. Employers must be prepared to investigate, and fully remediate supervisors’ misconduct.
Recently, the Seventh Circuit Court of Appeals (Illinois, Wisconsin, Indiana) held that an employer may be liable for intentional acts committed by supervisory employees against other employees outside of work if the employer has been negligent. The tragic case, Anicich v. Home Depot USA, Inc., 852 F. 3d 643 (7th Cir. 2017), arose from the death and rape of a pregnant employee at the hands of her supervisor.
On July 14, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a contractor for 10 serious violations after the deaths of three workers who succumbed to toxic gases in a manhole on January 16, 2017.
Preventable safety failures led to the deaths of Elway Gray, a 34-year-old pipe layer, who entered the manhole – a confined space – and quickly became unresponsive; Louis O’Keefe, a 49-year-old laborer, who entered the hole in an attempt to rescue Gray; and Robert Wilson, a 24-year-old equipment operator, who followed to rescue his two fallen ...
On July 12, 2017, a three judge panel in the seventh circuit unanimously affirmed District Judge J.P. Stadtmueller’s ruling dismissing a lawsuit filed by two International Union of Operating Engineers (IUOE) locals that challenged the validity of Wisconsin’s right-to-work law. Judge Stadtmueller’s dismissal in September 2016 was based on the seventh circuit Sweeney v. Pence 2014 decision that upheld Indiana’s “nearly identical” law.
The Wisconsin law provides that “no person may require, as a condition of obtaining or continuing employment, an ...
On July 17, 2017, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 07/17/17 N. This new version of the Form I-9 does not have sweeping substantive changes like the current form issued in November 2016. In fact, the changes are primarily re-naming and re-numbering.
The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until September 17, 2017, employers can use either: (1) Form ...
Under the Americans with Disabilities Act (ADA) it is unlawful for an employer to discriminate against a qualified individual on the basis of disability, and this includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual. A qualified individual is a person with a disability who can perform the essential functions on the job with or without a reasonable accommodation. A reasonable accommodation includes making existing facilities used by employees readily accessible to individuals with disabilities. If an ...
The seventh circuit recently clarified under what circumstance a collective bargaining agreement may restrict an employee’s access to a judicial forum for purposes of resolving statutory claims. In Vega v. New Forest Home Cemetery, the appellate court reversed the lower court’s dismissal of a Fair Labor and Standards Act (FLSA) claim brought by a former employee who had not complied with the grievance process provided in his collective bargaining agreement (CBA).
Luis Vega filed an FLSA lawsuit claiming New Forest failed to pay him for 54 hours of work. Vega was a union member ...
As part of what is certain to be an evolving area of the law, the Staff of the Cook County Commission on Human Rights has issued a set of Frequently Asked Questions (FAQs) related to the new Cook County Earned Sick Leave Ordinance (effective 7/1/17). These FAQs (which may be updated from time to time), as well as the Cook County Earned Sick Leave Rules (“Rules”), are available for download from the Cook County Website.
In reviewing the Cook County FAQs, it is important to note their opening disclaimer, which essentially states that the FAQs are not legal advice, do not have the force of ...
Missouri Governor Eric Greitens recently signed into law changes to the Missouri Human Rights Act (MHRA), bringing it in line with federal employment law standards. The changes take effect August 28, 2017.
The most significant change is the return of the motivating factor standard to Missouri discrimination claims. Prior to 2007, MHRA claims, like federal claims, were analyzed to determine whether a protected characteristic “motivated” the challenged employment decision. In 2007 the Missouri Supreme Court, relying on MHRA’s definition of “discrimination” as well ...
On June 27, 2017, the United States Department of Labor (DOL) announced that it is reinstating the DOL’s Wage and Hour Division opinion letter process, which was in existence for more than 70 years prior to a change in procedure in 2010.
DOL opinion letters allow employers (and employees) to submit questions to the DOL regarding whether particular employment practices comply with the laws the DOL enforces. The DOL then has the discretion to respond, publicly, with appropriate guidance. Opinion letter guidance can be presented to courts and investigators—by the employer that ...
This morning OSHA issued a press release announcing that it would be delaying the compliance date for its rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposes pushing the compliance date back four months, from July 1, 2017 to December 1, 2017. We previously reported on the rule, its requirements, and its significant impact last year.
In the press release, OSHA echoes the Trump administration’s earlier promise to review and reconsider any recently enacted administrative rules and ...
On July 1, 2017, Chicago’s Minimum Wage increases to $11.00 per hour for non-tipped employees and $6.10 for tipped employees (Chicago Municipal Code §1-24). Cook County’s new minimum wage is $10.00 per hour for non-tipped and $4.95 for tipped employees.
IMPORTANT NOTICE REQUIREMENTS: All employers that maintain a business facility within the geographic boundaries of Chicago AND/OR are subject to one or more of the license requirements in Title 4 of the Municipal Code of Chicago are covered by Chicago’s Minimum Wage Ordinance and MUST do the following starting July 1st:
Imagine that in order to increase time and attendance record accuracy and efficiency, you have invested in a new biometric time clock system. This makes good business sense and overall, it is a straightforward issue…until HR tells you that an employee has refused to use the time clock for religious reasons.
In U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc., (4th Cir. June 12, 2017), a coal mine worker who was a practicing evangelical Christian, refused to use a hand scanner time clock because he believed that it would “mark” him with the sign of the ...
Summer is unofficially here. Kids are out of school. Many employees are checking their vacation balances to see how much time they can take off work.
For HR, vacation balances can be incredibly time-consuming. You have to worry about different accrual rates for different employees and set up tracking systems to account for those different rates. You have to make sure time off is being properly requested, approved and accounted for. After all, vacation not properly accounted for can lead to over-stated liabilities on company financials. For most companies, payroll is already the ...
As previously reported on March 29th, the fight against the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education continues. On June 6, 2017, Mark Janus, an Illinois state employee who is required to pay agency fees to AFSCME Council 31 pursuant to the Illinois Public Labor Relations Act, filed a petition for a writ of certiorari seeking review of a seventh circuit decision that affirmed the dismissal of his complaint. The petition poses the following question to the Supreme Court: should Abood be overruled and public sector agency fee arrangements ...
The proposed budget released by the White House in May includes a plan to provide new parents with up to six weeks of paid leave to bond with a new child. Obviously the plan is far from becoming law; implementing such a plan would require congressional approval and that process has yet to start. Still, the plan is interesting for its shear breadth and its mode of funding. The plan calls for funding through each state’s unemployment insurance programs. So far at least, there are very few details.
Though many employers choose to provide some amount of paid leave to new parents, only 3 states ...
With the Cook County Earned Sick Leave Ordinance’s July 1, 2017 effective date around the corner, the Cook County Commission on Human Relations (“CCCHR”) approved its administrative rules on May 25, 2017.
While we previously discussed the Ordinance, one of the most significant aspects of the rules is the new requirement that employers provide covered employees with a notice of their rights under the ordinance at least once per calendar year.
The CCCHR also published a model poster, which must be posted in each place of business where any covered employee works within ...
On May 15, 2017, the seventh circuit ruled that unless the language in a collective bargaining agreement (“CBA”) explicitly states that the employee must resolve his statutory and contractual rights through the grievance procedures in the contract, an employee is free to file suit in court to resolve his statutory claims.
After being terminated from employment, Luis Vega, a seasonal employee at Forest Home Cemetery, attempted to collect unpaid wages by resorting to the grievance procedures of his CBA. When these efforts proved futile, Vega filed a Fair Labor Standards Act ...
Secretary of Labor Alexander Acosta announced on Monday that portions of the controversial Department of Labor (DOL) fiduciary rule will go into effect as planned on June 9, 2017, with full implementation of the rule on January 1, 2018. Issued in April 2016, the fiduciary rule expanded the definition of a fiduciary under the Employee Retirement Income Security Act (ERISA) and imposed a higher standard of care and significant new procedural requirements on those providing investment advice to retirement plans, plan sponsors and participants. Implementation of the rule was ...
The National Business Group on Health’s Eighth Annual Survey on Corporate Health recently revealed the growing prevalence of workplace wellness programs. Many such programs are expanding their aim to not only better the physical health of employees, but also to improve employees’ emotional health and financial security.
Employers should be cautious that health and wellness programs, particularly those dealing with the physical and emotional health of employees, do not run afoul of existing laws. Many employers offer employees health promotion and disease prevention ...
Recently, there has been much discussion about the composition of the five-member board in Washington, D.C., including President Trump’s appointment of Philip Miscimarra as National Labor Relations Board (NLRB) Chairman, and the expected shift from pro-labor initiatives – especially in light of the expiring term of the NLRB General Counsel who was appointed by President Obama. The NLRB recently issued an order that may be a sign of things to come.
On May 5, a divided NLRB denied the NLRB General Counsel’s motion for summary judgment (a request for judgment as a matter of law ...
As the Trump administration looks to unburden employers through the rollback of employment-related regulations and Executive Orders, one of the likely results will be an increase in state and local employment legislation and regulation—especially in so-called “blue states.”
Employers have long been forced to consider state and local laws—in addition to federal—regulating their workforces. Many state and local laws already serve to increase employee protections over and above those contained in federal law counterparts—i.e., adding additional protected ...
The July 1st effective date of the Cook County and Chicago Sick Leave Ordinances is quickly approaching and employers must review their paid time off, sick and vacation policies now to ensure compliance with the new ordinances. Some of the key similarities and differences of the ordinances’ provisions are highlighted below:
Similarities:
- Covered Employee – An employee who: (1) works for an employer at least 80 hours within any 120-day period; and (2) performs at least 2 hours of work in Cook County (or the City of Chicago depending on the ordinance being applied) during any 2 ...
The Supreme Court’s recent McLane Company v. EEOC decision addresses the constraints placed on appellate review of actions to enforce or quash broadly written Equal Opportunity Employment Commission (EEOC) subpoenas. The case arose from a supply chain company’s requirement that employees in certain physically demanding positions pass a physical examination prior to returning to work from medical leave. The company terminated an employee who failed the exam three times while attempting to return to work after taking maternity leave.
The employee filed a ...
It’s that time of the year when college students will come knocking looking for a job or an internship. Depending on the nature of an organization’s business, an unpaid intern might be a great idea. But before organizations start engaging summer intern help, they need to make sure that they are complying with the Department of Labor (DOL) requirements, which include the following six factor test:
- The internship is similar to training that would be offered in an education environment;
- The internship experience is for the benefit of the intern;
- The internship is not ...
When a change of ownership occurs for a business that employs individuals who are represented by an incumbent union, the new owner must be aware of the National Labor Relations Board’s (NLRB) successor bar doctrine. It used to be that following a sale or a merger of a business, there was a window of time during which employees, the new employer, or a rival union, could challenge a union’s majority status as representative of those employees. However, in 2011, the NLRB modified the doctrine in UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011), holding that for stability, the new ...
On April 13, 2017 the National Labor Relations Board (NLRB) set aside a vote defeating a union organizing campaign and ordered a new election because the workforce could have perceived management’s statements as impermissible promises to provide benefits if they voted down the union.
During a unionizing campaign, management held a meeting in which it advised employees that another facility’s employees received a 12% pay raise the pay period after they rejected union representation. Management explained that the raises were the result of a survey of wages in that ...
While the H-1B petitions submitted for the lottery this cap season were still in transit to the U.S. Citizenship and Immigration Services (USCIS), both the USCIS and the Department of Labor (DOL) announced several measures aimed at detecting H-1B visa fraud and abuses.
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Beginning April 3, 2017, USCIS is taking a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The focus will be on the following: (1) cases where USCIS cannot validate an employer’s basic business information through commercially available ...
An OSHA investigation concluded on April 11, 2017 found that Atlantic Drain Service Company, Inc. failed to train its employees to recognize and avoid cave-in and collapse hazards, and failed to provide basic safeguards against trench collapse. Two Atlantic Drain Company employees died on October 21, 2016 in Boston when a trench collapsed which ruptured an adjacent fire hydrant supply line filling the 12 foot deep trench with water in a matter of seconds.
In announcing $1,475,813 in proposed penalties for 18 willful, repeat, serious and other violations, OSHA determined that both ...
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. The seventh circuit decision is significant as the first of its kind. The United States Supreme Court has never ruled whether Title VII prohibits discrimination based on sexual orientation, and the seventh circuit, as well as the other United States Circuit Courts of Appeals had previously established a long line of precedent holding that claims ...
The “Cat’s Paw Theory” in discrimination cases is based upon a fable in which a clever monkey tricks an unwitting cat to pull chestnuts from a fire, so that the monkey can make off with the chestnuts without burning himself. Courts have applied the “cat’s paw theory” to hold employers liable for discrimination where the decision maker was not biased or based the decision on discriminatory animus, but was influenced by a supervisor or co-worker who was biased or took actions based on discriminatory intent. Just as the unsuspecting cat is left nursing his burnt paws in the ...
Small employers struggling to assist their employees with the cost of health coverage, but daunted by the high cost of a group health plan, now have another option.
The 21st Century Cures Act, passed at the end of 2016, created a new type of reimbursement plan called a Qualified Small Employer Health Reimbursement Arrangement (QSEHRA). QSEHRAs allow eligible small employers to reimburse employees for premiums for individual health insurance policies and other eligible medical expenses. This is a change, as since the implementation of the Affordable Care Act (ACA), employers of all ...
Exactly a year ago today in what now appears to be a temporary reprieve, the United States Supreme Court issued its decision in Friedrichs v. California Teachers Association. An “equally divided court” affirmed the judgment of the 9th Circuit that “fair share” or “agency” fee provisions in public sector contracts were valid. Up to that time, observers had anticipated that the Supreme Court would use Friedrichs to overturn its 1977 opinion in Abood v. Detroit Board of Education, which held agency fees were deemed proper if exacted for “collective ...
On March 22, 2017, the U.S. Senate passed a measure to revoke OSHA’s modification to the six-month statute of limitations for recordkeeping violations. Under the Obama Administration, OSHA issued a new rule to extend the statute of limitations for recordkeeping violations from six months to five years. The changed recordkeeping regulation went into effect in January 2017, but a bill is now on its way to President Trump who is expected to sign the bill and revoke the new regulation.
OSHA issued the new recordkeeping rule on December 16, 2016 in response to an adverse decision by the ...
Although bathroom use seems to be at the forefront with the media in regards to transgender issues; there are several other issues to consider, and the final rule on health plan nondiscrimination is no exception. Transgender related health services tend to deal with gender dysphoria, a medical condition where an individual’s gender identity is different from the sex assigned to that individual at birth.
The final regulations implementing Affordable Care Act (ACA) Section 1557 is applicable to plan years beginning on or after January 1, 2017. Within the final rule, the following ...
Nondiscrimination and privacy laws make recordkeeping a daunting task. Here are some compliance tips for today’s highly legislated and regulated business world:
KNOW THE FILE TYPES
Not all files are the same.
A Personnel file contains documents used to determine qualifications for employment (e.g., promotion, transfer, compensation), discharge, and other discipline. Therefore, do not include records indicating protected characteristics – race, religion, marital/dependent status, date of birth (age) and the like – because this information should not ...
The organizers of January’s Women’s March on Washington and similar “sister” marches across the country are calling for women to “take the day off from paid and unpaid labor” on March 8, 2017. Promoted as a “Day Without A Woman” and an “International Women’s Strike,” the protests are scheduled to coincide with International Woman’s Day.
While we do not anticipate the level of participation to be on the scale of the January marches, employers will likely experience higher than normal employee absences and should plan accordingly. As a general rule:
- Have a ...
The settlement of a recent pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC) against RTG Furniture Corp., provides a valuable reminder to employers that even well-intentioned limitations placed on pregnant employees are likely to violate Title VII and, where applicable, state laws that prohibit pregnancy discrimination.
According to the EEOC’s allegations in the lawsuit, within days of being hired, a new employee informed RTG that she was pregnant, but that she had no work restrictions and could perform all aspects of the job ...
On February 17, 2017, the United States District Court for the Eastern District of California held that job applicants could proceed with their disparate impact claim brought under the Age Discrimination in Employment Act (ADEA).
In Rabin v. Pricewaterhouse Coopers LLP, plaintiffs filed a putative class action alleging that the global accounting and auditing firm used hiring practices and policies for entry-level positions that gave preference to younger applicants and resulted in the disproportionate employment of younger employees. The complaint alleged that these ...
Website accessibility continues to be a hot topic. Hundreds of businesses throughout the country have been sued in the past few years for failing to have accessible websites. Retail businesses have been the primary target; however, financial institutions and now, the health care industry, are receiving threatening letters from high profile law firms, alleging that the businesses’ websites are not “accessible” and in violation of the Americans with Disabilities Act (ADA). The law firms threaten to file suit if the businesses do not make their websites compliant with the Web ...
In a protest against President Trump’s immigration policies and plans, organizers around the country are coordinating a national protest day set for Friday, February 17th — encouraging workers to “walk out” or “don’t work” if they can. Some workplaces are already being impacted, and Friday could be chaotic.
In response to this activity, employers should keep in mind the following:
- Don’t overreact and cause more chaos (remain calm, stay cool);
- Turn to one’s regular attendance policies. For example, a single “no call, no show” in one instance results in what ...
On September 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced it finalized regulations that require employers to include employee pay data in annual EEO-1 reports. The pay data is required for 2017 reports, which are due March 31, 2018. That is, employers with 100 or more employees are now required to include aggregate W-2 income by gender, race, ethnicity, and job group on their EEO-1 reports. The rule was harshly criticized by employers, who place hope in the Trump administration to undo the regulations.
On January 25, 2017, President Trump designated ...
On February 6, 2017, the newly elected GOP Governor Eric Greitens, signed into law a right-to-work (RTW) bill that passed the state’s Republican-controlled state legislature.
Nuts and Bolts of the Missouri RTW law
- Effective date: August 28, 2017
- Who it applies to: Both private and public sector employers (except those in the airline and railroad industries, as well as certain federal employers).
- What it prohibits:
- No employee can be required to become or remain a union member as a condition of employment.
- No employee can be required to pay dues, fees or assessments of any kind to ...
By now, employers should well know that they may not make unlawful inquiries of applicants based on protected classes (e.g., age, religion), as well as arrest history. In the past few years, we’ve seen an increase in legislation (and litigation) that impact employers’ ability to gather information and check an applicant or employees’ background, such as state and local “ban the box” laws, which generally prohibit employers from asking about criminal convictions until an applicant is made a conditional offer of employment. And, even when and where checking an applicant ...
The U.S. Court of Appeals for the Seventh Circuit issued a recent decision that made several pronouncements regarding Illinois vacation pay—many of which seem straightforward—but they were pursued to a final decision by a federal appellate court, so a brief refresher course appears to be in order.
First, as the decision makes clear, the law does not require employers in Illinois to provide paid vacation benefits to employees. However, when an employer in Illinois provides paid vacation benefits to employees, Illinois law requires the employer to pay an employee the value of ...
On January 20, 2017 shortly after taking office, newly sworn in President Donald Trump directed White House Chief of Staff Reince Priebus to issue a memorandum to the heads of executive departments and agencies directing them not to send any regulations to the Federal Registry until further notice, to withdraw any proposed regulations that have not been published and to postpone for 60 days the effective dates of regulations that have been published by the Officer of the Federal Register. As stated in Priebus’ memorandum, the purpose is to ensure the President’s appointees or ...
Shortly following his inauguration on Friday, President Trump signed an Executive Order affirming his intent to eliminate the Affordable Care Act (ACA). The executive order is not a repeal of the ACA and does not make any changes to the law or regulations thereunder, but rather addresses the actions of federal agencies in enforcing the existing law. The executive order directs the agencies responsible for overseeing ACA enforcement (Health and Human Services, Treasury Department, and Department of Labor) to, “take all actions consistent with the law to minimize the ...
We are now almost three weeks into the New Year and while it might be tempting to ease into 2017, the time is now to ensure that the required compliance updates have been made to your payroll and Form I-9 procedure to comply with the 2017 changes.
Minimum Wage
The following 21 states have updates to their minimum wage that affect your payroll for 2017:
- Alaska (Effective 1/1/17) – minimum wage increases from $9.75 to $9.80.
- Arizona (Effective 1/1/17) – minimum wage increases from $8.05 to $10.00.
- Arkansas (Effective 1/1/17) – minimum wage increases from $8.00 to $8.50.
The U.S. Supreme Court announced Friday, January 13, 2017 that it will hear a trio of cases concerning the right of employers to include class action waivers in employment-related arbitration agreements. Arbitration agreements are contracts through which an employee and an employer agree to resolve potential future disputes through binding arbitration rather than through the courts. Class action waivers are provisions in arbitration agreements that prohibit employees from joining together to arbitrate multiple related claims in a class or collective action. If such a waiver ...
The NLRB has, once again, struck down work rules the Board deemed overly broad. This time, the employer is Whole Foods Market, and the rules at issue essentially barred employees from photographing or making audio or video recordings during working hours—that is, when employees were being paid to do their assigned work. These rules did not apply while employees were on break.
Readers may remember that the NLRB’s rationale for striking down various employer policies in recent years has hinged on protecting employees’ rights under the National Labor Relations Act to engage in ...
On January 6, 2017, the United States Equal Employment Opportunity Commission’s (EEOC) twitter account confirmed the federal agency’s interest in “gig economy” workers. “Gig economy” workers refer to individuals working in modern, flexible employment structures that contract with an employer for a short-term project or on a job-by-job basis, rather than working in traditional, long-term relationships with a single employer. For example, gig economy workers generally reference temporary workers, freelancers, independent contractors, and staffing ...
The EEOC’s new Strategic Enforcement Plan (SEP) highlights its enforcement priorities and alerts employers to areas most likely to attract the EEOC’s investigative eye, including the types of charges the EEOC is most likely to litigate on a complainant’s behalf.
The EEOC recognizes that employment law is continuously developing and that related practices are continuously evolving. As a result, this SEP is intended to reflect current issues. This new four year SEP (which remains in effect until superseded, modified or withdrawn by vote of a majority of members of the ...
Almost as certain as death and taxes is the fact that technology is constantly changing. You regularly download windows updates and security patches. You regularly download operating system updates for your mobile phone and tablets. But, how often do you review your company’s data retention and email policies?
Record retention policies are incredibly specific to each business. A template policy seldom, if ever, does the job. Many businesses are subject to industry-specific record keeping obligations and, even with a single business, various departments have different ...
A recent 7th Circuit Court of Appeals decision, Gracia v. Sigmatron, International, Inc., Case No. 15-3311, is a good reminder to employers to be careful in taking adverse action against an employee who recently engaged in statutorily protected activity. In Gracia, a longtime employee, who had complained of sexual harassment by her supervisor and filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), was fired two weeks later for allegedly allowing a subordinate to make a production error on a customer order. The employee sued her ...
Intermittent FMLA leave can be a source of frustration for employers even when it is used appropriately because it complicates staffing and planning and interrupts business operations. But when an employee’s use of intermittent leave seems just too convenient (e.g., when it is regularly used on Fridays and Mondays to make long weekends), employers naturally grow suspicious.
The recent Sharif v. United Airlines, Inc., decision from the U.S. Court of Appeals for the Fourth Circuit confirms that if an employer is able to prove intermittent FMLA abuse by conducting a prompt and ...
As we previously reported, on 11/22/2016, Judge Amos Mazzant (E.D. Texas) granted a preliminary injunction that halted the 12/1/2016 implementation of the DOL’s Final Overtime Rule, which would have more-than-doubled the minimum salary level for executive/administrative/professional exempt employees.
On 12/1/2016, the U.S. DOL filed a notice of appeal to the Fifth Circuit Court of Appeals, indicating that it strongly believes that the DOL followed all required administrative processes, and there is no reason to delay implementation of the Final Rule.
This fight is not ...
OSHA previously delayed enforcement of its controversial post-accident drug testing and safety incentive rules until December 1, 2016. OSHA agreed to the delay at the request of a federal Judge who was considering a lawsuit requesting injunctive relief to prevent the new rules from going into effect. This week, the Judge issued a decision denying the request for injunctive relief. In light of the decision, OSHA announced it intends to begin enforcement of the new rules on December 1, 2016.
As a reminder, this injunction was filed because during the rulemaking process, OSHA ...
As we previously reported, last week on 11/22/2016, US District Judge Amos Mazzant blocked the 12/1/2016 implementation of the DOL Final Overtime Rule when he issued a preliminary injunction in favor of the plaintiffs (21 States and over 50 business organizations) in litigation pending in the Eastern District of Texas.
THE FINAL RULE
The Final Rule, announced on 5/23/2016, would increase the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually) (see our prior article for more information). Notably, there was no ...
On November 22, 2016, a Texas federal district court granted a nationwide preliminary injunction against the U.S. Department of Labor’s overtime rule. State of Nevada v. U.S. Dept. of Labor, No. 4:16-cv-00731-ALM (E.D. Tex. 11/22/2016).
This injunction halted the rule’s December 1, 2016 implementation that would have more-than-doubled the salary level to $913 per week for overtime-exempt executive, administrative, and professional white collar workers.
We will provide additional details on what this preliminary injunction means for employers after the ...
The Department of Justice (DOJ) and Federal Trade Commission (FTC), the agencies that jointly enforce antitrust law, issued an “alert” last month: “Antitrust Guidance for Human Resources Professionals.” The guidance is aimed at HR professionals in order to put them on notice regarding employer hiring and compensation practices that may violate antitrust laws. There are two main points:
- “No-Poaching” agreements (agreements not to recruit certain employees) and wage-fixing agreements (agreements not to compete on terms of compensation) between employers are ...
The Honorable Judge Amos L. Mazzant III in the pending DOL overtime preliminary injunction lawsuit, State of Nevada et al v. United States Department of Labor et al. (Case No. 4:16-cv-00731-ALM, Eastern District of Texas), heard arguments yesterday as to whether the DOL should be enjoined at this time from implementing the new overtime and salary increase rule. The court – questioning the nationwide implications at stake here – was not interested in what the next administration will do come 2017 and wanted to focus on the law now.
After hearing arguments, the judge took ...
On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) released the new version of the Form I-9. The Form I-9 is the form employers are required to complete for each newly hired employee in the United States to verify the employee’s identity and eligibility to work in the United States.
Employers may continue using the Form I-9 dated 03/08/2013 N only through January 21, 2017. NO LATER THAN January 22, 2017, employers MUST use the revised form (dated 11/14/2016 N) for all new hires and any employee that requires reverification of employment eligibility.
A Texas federal judge today, November 16, 2016, struck down the U.S. Department of Labor’s controversial “Persuader Rule” finding it unlawful. The decision made permanent, and gave nationwide effect to, the court’s earlier temporary injunction blocking enforcement of the Rule. As we reported back in March and again in June, the Persuader Rule would have essentially gutted the “Advice Exception” to the federal Labor Management Reporting and Disclosure Act by requiring employers and labor relations consultants, including attorneys, to submit detailed ...
On October 19, 2016, the United States Court of Appeals for the Seventh Circuit reversed a District Court’s Rule 12(b) (6) dismissal of two plaintiffs’ retaliation claims brought under Title VII and the Illinois Human Rights Act. In Volling and Springer v. Kurtz Paramedic Services, Inc., Case No. 15-3572, two Emergency Medical Technicians (EMTs) alleged that their employer and its new subcontractor refused to hire them because they had reported and/or supported claims of sex discrimination and sexual harassment against the employer’s previous subcontractor to the ...
On October 11, 2016, the Occupational Safety and Health Administration (OSHA) issued the final rule creating procedures for handling whistleblower complaints under the Affordable Care Act (ACA). The ACA prohibits employers from retaliating against employees who report alleged violations of the act’s health coverage reforms or who receives a premium subsidy or tax credit for purchasing individual health coverage through a state or federal exchange. A covered employer can receive a penalty if an employee receives a tax-credit or premium subsidy for coverage through an ...
On October 25, 2016, the Cook County Minimum Wage Ordinance (CCMWO) became immediately effective, on the heels of the county’s Paid Sick Leave Ordinance. The CCMWO provides the following significant requirements:
- Covered Employees are those who work at least two (2) hours in any particular two (2) week period physically within the county’s geographic boundaries, including compensated travel time for business activities.
- Covered Employers include individuals who employ at least one Covered Employee AND (1) maintain a business facility within the county’s ...
This past June, our blog reported on the Seventh Circuit’s decision in Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016), which found that the Federal Arbitration Act does not require enforcement of an arbitration agreement based on the employee’s right under the National Labor Relations Act (NLRA) to engage in protected concerted activity. Specifically, in Lewis the Seventh Circuit held that employment arbitration agreements that include class action waivers violate the NLRA and cannot be enforced. This was the first time that a circuit court had ...
On September 7, 2015, President Obama signed Executive Order 13706 requiring federal contractors to provide paid sick leave to their employees – up to 7 days annually. The leave is related to an employee’s own illness or injury, including, domestic violence, sexual assault and stalking absences, and for family care for same. The Department of Labor published its Final Rule just over a year later on September 30, 2016.
Here are the key components:
- The Final Rule applies to any new federal contracts solicited on or after January 1, 2017, replacement contracts (for those that are ...
As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016. Now, with the November 1, 2016 deadline approaching, OSHA has extended its stay on enforcing the post-drug testing rule until December 1, 2016.
OSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues ...
The Americans with Disabilities Act (ADA) not only provides employment protections and accommodation rights to qualified individuals with disabilities in the workplace, it also requires reasonable accommodations in “places of public accommodation.” Places of public accommodation include businesses that are open to the public and fall within one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices. The ADA’s mandate extends to newly constructed or altered places of ...
As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016. Now, with the November 1, 2016 deadline approaching, OSHA may extend its stay on enforcing the post-drug testing rule until December 1, 2016.
OSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues ...
The U.S. Department of Labor’s (DOL) implementation of its Final Overtime Rule and an increase for salaried exempt employees to $913/week is set to go into effect on December 1st. We want to debunk the myths of what could and could not derail the implementation:
- New Litigation – On September 20, 2016, two lawsuits were filed to enjoin the new regulation from taking effect: States of Nevada et. al v. U.S. Department of Labor et. al., Case 4:16-cv-00731, Eastern Dist. TX and Plano Chamber of Commerce et. al v. Thomas Perez et. al., Case 4:16-cv-00732, Eastern Dist. TX. Both lawsuits ...
Last week, the Cook County Board passed a paid sick leave ordinance that requires most employers in Cook County to provide paid sick leave for their employees. It will take effect on July 1, 2017 and basically mirrors the requirements of a City of Chicago paid sick leave ordinance that passed earlier this year.
The county ordinance requires a covered employer to provide to eligible employees up to 40 hours (5 work days) of paid sick leave in a 12-month period. The 12-month period begins as soon as the covered employee begins employment or July 1, 2017, whichever is later.
Coverage ...
With the 2016 general election heating up, discussions about politics and candidates will inevitably enter the workplace. Employers should be aware of several critical legal issues when responding or reacting to politics in the workplace, as well as understanding workers’ rights to engage in the political process.
Imposing a blanket ban on political discussions may run afoul of the National Labor Relations Act.
The NLRA, which applies to private unionized and non-unionized workplaces, protects non-supervisory employees’ discussions about terms and conditions of ...
The Americans with Disabilities Act (ADA) and the laws of many states generally require employers to provide “reasonable accommodations” to certain employees with disabilities. This requires the employer and employee to participate in an interactive process aimed at finding job changes that allow the employee to continue working. For many employers, that requirement raises many questions for which there are no simple, definitive answers—which forces employers to make accommodation decisions amid considerable uncertainty.
But the recent decision in Dillard v ...
The National Labor Relations Board (NLRB) enforces the National Labor Relations Act, the law that allows private sector employees to address the terms and conditions of their employment (e.g., wages, hours, benefits) through collective action. Through a recently released Advice Memorandum, the NLRB expanded its role to include regulating independent contractor relationships. Pac. 9 Transp., Inc., Advice Mem., No. 21-CA-150875 (NLRB 12/18/2015, released 8/26/2016).
In Pac 9, multiple unfair labor practice charges were filed, alleging violations of the Act as it ...
Recently the Illinois Attorney General filed a lawsuit against a well-known restaurant franchise seeking to enjoin it from enforcing non-compete provisions in employment agreements that it had required all employees to sign, including hourly employees such as delivery drivers. The clauses at issue prohibited employees from working at any other similar business within two miles of any of the franchisor or its franchisees’ stores in the United States. Even though the franchisor agreed to voluntarily drop these clauses moving forward, the Illinois legislature took action and ...
Last month, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. Having last issued guidance on retaliation claims in 1998, the agency stated that an updated publication was necessary in light of the significant court rulings on these claims, as well as the increasing frequency of retaliation claims in administrative charges and lawsuits. Retaliation is now the most commonly alleged basis of discrimination.
Of particular interest, the EEOC discusses at length its position on various issues that arise in determining whether an employee has engaged in ...
A new proposed rule represents a hopeful change for foreign entrepreneurs looking to stay in the U.S. to start and grow their businesses.
Currently the only routes for foreign entrepreneurs to obtain a visa involve huge risk. Those routes, via a Treaty E visa or the EB-5 visa program, require applicants to make significant investments upfront and essentially build their businesses to satisfy the visa criteria, with no guarantee that a visa will be granted.
One of my clients, who sold all-terrain vehicles, imported several of these vehicles and related equipment, not knowing if he ...
Recently, the United States Court of Appeals for the Second Circuit ruled that police officials in Madison, Connecticut are not immune from liability for a fired police officer’s claim that she was retaliated against for her First Amendment speech. The case of Ricciuti v. Gyzenis, No. 12-432 (2nd Cir. August 24, 2016) involves a police officer who shortly after being hired inquired about the poor condition of police vehicles and was told that the department needed funds to cover overtime. On her own initiative, Rebecca Ricciuti prepared a work schedule that would have ...
Last week the EEOC filed suit against an Arizona car dealership for rescinding its offer to an applicant who tested positive for a substance banned by the company’s drug policy. The drug screen itself was legal. The ADA specifically allows employers to screen applicants and employees for illegal drug use. It was the employer’s policy of excluding anyone who tested positive for certain substances without first inquiring whether the substance was legally prescribed to treat a disability that prompted the EEOC to file suit. Notably, the EEOC filed suit on behalf of this particular ...
Compensation to employees who opt out of health insurance or other benefits, known as a “cash-in-lieu” program, can be an attractive option for both employers looking to manage skyrocketing health care costs and employees looking for a little extra cash. But a recent ruling by the Ninth Circuit Court of Appeals highlights a significant risk to employers of such programs.
In Flores v. City of San Gabriel, 2016 WL 3090782 (June 2, 2016), the first case of its kind, the court held that under the Fair Labor Standards Act (FLSA) cash payments made to an employee in lieu of benefits must ...
Today, August 23, 2016, the National Labor Relations Board issued a 3-1 decision ruling that graduate students, who work as teaching and research assistants at private universities, are entitled to collectively bargain.
The NLRB did so by expanding its interpretation of the definition of statutory employees to include student assistants working at private colleges and universities. The decision reversed a 2004 decision involving a similar campaign at Brown University. While many graduate students at public universities are already unionized, their right to do so was covered ...
In the past week, the Securities and Exchange Commission (SEC) twice flexed its muscle in the arena of employee rights – taking specific aim at severance agreements that require departing employees to waive their rights to collect whistleblower awards.
Background
Severance Agreements: For many companies, it is standard practice to present departing employees with voluntary severance agreements that set out the terms of the termination of the employment relationship. Often, these include a monetary payment from the employer in exchange for a waiver and release of various ...
Without much notice or fuss, the U.S. Department of Labor updated two employment posters late July 2016:
- The Federal Minimum Wage poster applies to employers subject to the federal minimum wage.
While there was no change to the actual Federal Minimum Wage, some of the additions and revisions included nursing mothers’ rights; consequence for misclassifying an employee as an independent contractor; DOL enforcement; and tip credits.
- The Employee Polygraph Protection Act Poster applies to most private employers.
Minor changes included ...
One of the most recent illustrations of the need for written anti-discrimination policies and training comes from a case out of a federal trial court in Michigan. In the case, McCrary v. Oakwood Healthcare, Inc., No. 14-14053 (E.D. Mich. Mar. 16, 2016), a hospital patient stated that he did not want to be treated by African-American hospital employees.
Cutting to the chase: such a request is unacceptable; the customer (or patient, in this instance) is not always right. Nevertheless, the patient’s request was noted in his chart—and the hospital did not immediately reject the ...
On Friday, July 29, 2016, Governor Rauner approved Public Act 99-0703, the Child Bereavement Leave Act (likely to be codified at 820 ILCS 154). Without a lot of fanfare or notice, this law became effective immediately upon signature. This law requires employers with 50 or more employees (those subject to the Family and Medical Leave Act) to provide two weeks (10 business days) of unpaid bereavement leave to employees so that they can:
(1) attend the funeral or alternative to a funeral of a child;
(2) make arrangements necessitated by the death of the child; or
(3) grieve the ...
On July 28, 2016, the Sixth Circuit Court of Appeals issued an unpublished decision that analyzed an Americans with Disabilities Act (ADA) failure to accommodate a claim involving an employee who had applied for and received social security benefits for her disability. This case provides a helpful reminder on how employers should handle ADA plaintiffs who allege that they can return to work with accommodation but elsewhere represent that they are totally disabled from working.
In Stallings v. Detroit Public Schools, Case No. 15-2428, the court affirmed the district court’s ...
On July 1, 2016, the DOL issued an interim final rule that significantly increases the penalty amounts that may be imposed on plan sponsors for certain ERISA violations. The final rule ups the penalties for certain failures including failure to file an annual Form 5500 and failure to provide the Summary of Benefits and Coverage, as required by the Affordable Care Act.
These increases are the result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 whereby federal agencies were directed to adjust their civil monetary penalties for inflation each year ...
Fall is around the corner, and with it comes student interns bolstering their resumes. Interns can benefit companies by cutting down some of the workload; however, employers need to be aware that wage and hour laws can apply to interns.
The federal Fair Labor Standards Act (FLSA) mandates that nearly all employees be paid minimum wage and overtime for hours worked over 40 in a week. One FLSA exemption is for bona fide interns.
The U.S. DOL applies a fact-specific inquiry to determine whether an internship may be unpaid because “no employment relationship exists.”
- The ...
Back on our March 8, 2016 blog, we reported about two new lawsuits filed by the EEOC based on sexual orientation. On June 28, 2016, the EEOC reached a historic first settlement on one of these lawsuits. In the case against Pallet Companies, doing business as IFCO Systems North America, the EEOC alleged that the company discriminated against a woman by terminating her for complaining about harassment associated with her sexual orientation. Yolanda Boone, a forklift driver at IFCO’s Baltimore plant, complained that her supervisor harassed her by repeatedly making comments about ...
Last month, an EEOC Task Force issued a lengthy report on harassment in the workplace. The report begins with mention of the prevalence of harassment claims, which appear in almost a full third of the employment discrimination charges that the EEOC received in 2015. Given this, the report recommends that employers reboot their anti-harassment measures. Among other helpful research and advice, the report discusses risk factors that make a workplace more susceptible to harassment, many of which are discussed below:
- Workforce comprised of many young workers. Those in their ...
This is an update to our July 6, 2016 post regarding OSHA’s plan to enforce new rules concerning post-accident drug and alcohol testing. In response to a lawsuit filed to block the August 10th implementation of OSHA’s new electronic recordkeeping rule (including the limits on post-accident drug and alcohol testing), OSHA announced yesterday that it will delay enforcement until November 1, 2016. There is no indication that OSHA will back away from its new stance on post-accident drug and alcohol testing, but enforcement will not begin until November 1, 2016.
The Federal Court of Appeals for the First Circuit recently upheld a National Labor Relations Board decision finding a car dealership’s dress code ban on “pins, insignias, and message clothing” was, in and of itself, an unfair labor practice. The case is another in a long line of NLRB decisions striking down policies as unfair labor practices because, the board claims, employees might interpret them as infringing upon their right to unionize or engage in other concerted activity protected by Section 7 of the National Labor Relations Act.
The board concluded the ...
In a 3-1 decision the National Labor Relations Board made it easier to organize a company with a contingent workforce. Today’s Board decision returned to the rule established in M.B. Sturgis, Inc., 331 NLRB 1298 (2000) (“Sturgis”), reversing Oakwood Care Center, 343 NLRB 659 (2004) (“Oakwood”) thereby holding that employer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employer.
So what does this mean?
Under the newly resurrected Sturgis standard temporary employees can once again be included in a single ...
As we previously reported, the August 10, 2016 effective date for OSHA’s final electronic reporting rule is quickly approaching. The requirement to electronically submit data does not begin until 2017, but an important part of this rulemaking that goes into effect August 10, 2016 is the requirement for employers to implement a reasonable procedure to ensure accurate reporting of illnesses and injuries. The concern about possible underreporting was highlighted during the rulemaking process and post-accident drug and alcohol testing was specifically targeted as an ...
For more than 75 years, employers have had broad access to a powerful weapon to counterbalance a union’s ability to engage in an economic strike: the right to permanently replace those economic strikers. On May 31, however, the National Labor Relations Board (NLRB) replaced that powerful weapon with a water gun. In a 2-1 decision, the NLRB held that despite the economic nature of a strike, an employer violated the National Labor Relations Act (NLRA) by permanently replacing strikers because the employer was motivated by “a purpose prohibited by the Act.” American Baptist ...
City of Chicago Approves Paid Sick Time
On June 21, 2016, we posted a blog on the City of Chicago’s proposed ordinance mandating paid sick leave, including details about who it covers and how it could impact business owners.
On Wednesday, June 22nd, the full City council passed the ordinance. Effective July 1, 2017, part time and full time employees in Chicago will accrue 1 hour of sick leave for every 40 hours they work – with a cap of 5 days paid leave per 12 month period.
Employers can utilize their existing paid time off policies if they are more generous than the Chicago ordinance; ...
A Texas federal judge today, June 27, 2016, entered a nationwide injunction barring the U.S. Department of Labor from enforcing its Persuader Rule. HOWEVER, because nothing is certain, Amundsen Davis encourages all employers to speak with its outside counsel on securing Legal Representation Agreements before July, 1st to help combat and further protect its long term interests as explained in our June 24, 2016 Blog Update.
On July 1 (one week from today), the U.S. Department of Labor’s Persuader Rule goes into effect. The rule requires employers and labor consultants (including attorneys) to publicly report all actions, conduct, or communications that have a direct or indirect objective to persuade employees regarding their rights to collective bargaining, to obtain certain information concerning employee activities, or to persuade employees as to their rights to join or not join a union – which can include mere advice and counsel from attorneys (e.g., supervisor training, handbook ...
On June 17, 2016, the City of Chicago took one step closer into joining the ranks of requiring employers to give paid sick leave to their employees when the City Council’s Committee on Workforce Development and Audit unanimously voted on the Ordinance to do just that. If passed, Chicago will join 26 other cities (such as New York City, NY, Newark, NJ, and Philadelphia, PA), along with Washington, DC and five states (California, Connecticut, Massachusetts, Oregon and Vermont), who have also passed similar mandated paid sick leave for workers.
The Ordinance as currently proposed will ...
A recent consent judgment entered against Grisham Farm Products, in a lawsuit brought by the EEOC, Case No. 6:16-cv-03105 (W.D. Mo.) (June 8, 2016), provides an important reminder to employers that job application questions directed at medical histories are generally off-limits.
The case arose from an EEOC Charge filed by a man who did not even submit a job application. Instead, after seeing the application’s medical history questions, he headed to the EEOC and filed a Charge of Discrimination alleging violations of the Americans with Disabilities Act, as amended (“ADA” ...
Years ago, providing cash to employees that declined benefits was fairly common. Over the past few years, increasing regulations have made that practice mostly obsolete. Then, on June 2, 2016, the Ninth Circuit added FLSA overtime implications to the list of gotchas.
We routinely receive questions from employers contemplating offering cash to employees that decline benefits. Non-exhaustive examples of the concerns are:
- The option needs to be provided through a cafeteria plan
- The cash amount may impact “affordability” under the ACA
- The option cannot enable/require an ...
Under Federal, State and local laws, employers are required to post information regarding laws that protect workers in the workplace, including but not limited to wage laws, discrimination laws, workers’ compensation laws, unemployment law, protected leave laws and safety issues. In Illinois these include the following:
- IL Dept. of Labor State of Illinois Your rights Under Illinois Employment Laws
- IL Workers’ Compensation Notice
- IL Unemployment Insurance Benefits Notice
- IL Emergency Care for Choking
- IL Smoke Free Illinois Act
- FLSA / Minimum Wage compliance poster
- Equal ...
On March 24, 2016, we reported on a U.S. Supreme Court’s decision involving litigation by workers at meat-processing facilities who alleged they were entitled to overtime pay and damages because they were not paid for time spent “donning and doffing” protective gear. A critical issue in that case was the plaintiff’s use of statistical data to prove their claim, which the Supreme Court found appropriate, and which ultimately resulted in a $5.8 million judgment.
Shortly after that Supreme Court’s decision, the Tenth Circuit issued a ruling on yet another “donning and ...
Last week, clearly identifying the creation of a circuit court split, the Seventh Circuit (covering IL, IN and WI) held that class action waivers violate the NLRA, even in a non-union setting. Lewis v. Epic Sys. Corp., No. 15-2997 (5/26/2016). By way of background,
- The Supreme Court previously held that the Federal Arbitration Act (“FAA”) preempted a state court’s judicial rule regarding the unconscionability of class arbitration waivers in consumer contracts – even if the contract was a “contract of adhesion” between parties of significantly disparate ...
The Colorado state legislature recently passed House Bill 16-1438 requiring employers to engage in an interactive process to assess potential reasonable accommodations for pregnant employees and applicants for health conditions related to pregnancy and childbirth.
If Colorado’s governor signs this bill into law, Colorado will join a growing group of states that have passed similar legislation, including Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Minnesota, Nebraska, New Jersey, New York, Rhode Island, Utah, West Virginia, and the District of ...
The EEOC has finalized 2 rules relevant to employer wellness programs. The Final Rules, which can be found here and here, amend existing regulations implementing the Americans With Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (“GINA”), respectively, and specifically address employer-sponsored wellness programs.
The ADA prohibits employers from making disability-related inquires or requiring medical examinations, except in limited circumstances. GINA prohibits employers from requesting, requiring or purchasing “genetic ...
Today the US Department of Labor (“DOL”) issued its long awaited final rule increasing the minimum salary requirements under the Fair Labor Standards Act (“FLSA”).
Key Provisions of the Final Rule
The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt.
Of particular significance, the Final Rule:
- Sets the standard salary level at $913 per week – $47,476 annually;
- Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal ...
As we reported on May 13, 2016, there is now a federal statute, called the Defend Trade Secrets Act (DTSA) that provides a federal cause of action for trade secret misappropriation. The full DTSA is found here.
One important feature of the DTSA is that it, like most state trade secret statutes, allows employers to recover punitive damages and attorney’s fees for the unauthorized use or disclosure of trade secrets. However, unlike the state statutes, the DTSA conditions the availability of these remedies on compliance with certain notice requirements contained in Section 7 of ...
On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (DTSA). DTSA provides a new federal cause of action for misappropriation of trade secrets. A “trade secret” is a broad category of intellectual property. Essentially, it includes any business information that is confidential and derives value from not being known to competitors. It can include everything from technology, to business strategies, to proprietary information about customers and prospects. Unlike patents, copyrights or trademarks, there is no registration system for trade secrets ...
A recent federal appellate court decision underscores the importance of strong employment policies to establish the company’s expectations and potentially save the company from protracted and expensive litigation.
In Tsegay v. Amalgamated Transit Union, 1235, the court found that a union refusing to arbitrate a grievance did not breach its duty of fair representation to a union member terminated for using a mobile device while operating a passenger vehicle. No. 15-6102 (6th Cir. Apr. 27, 2016).
After passenger complaints of texting-while-driving, employer Metropolitan ...
Employers conduct employee background checks to reduce risk and improve hiring decisions. Ironically, any missteps during the background check process can open employers to significant legal exposure that easily outweighs any benefit obtained from using background checks in the hiring process. The Equal Employment Opportunity Commission’s (EEOC) has been clear that use of background checks in the hiring process might lead to discrimination claims. However, our experience shows that employers face a far greater threat to legal exposure when conducting employee ...
“The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected activity. In this case a government official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor.” So begins Justice Stephen Breyer’s decision in Heffernan v. City of Paterson, which the United States Supreme Court issued on April 26, 2016.
Heffernan was a police officer working for the Paterson Police Department in New Jersey. His supervisor ...
On April 26, the 4th Circuit of the U.S. Court of Appeals joined other federal circuits that have upheld NLRB approval of “micro-units.” See, Nestle Dreyer’s Ice Cream Co. v. NLRB, No. 14-2222 (4th Cir. Apr. 26, 2016). This is another boost for unions because micro-units ease their path into industries and business that have been difficult for them to organize in the past.
How do micro-units help unions and hurt employers? When a union files a petition with the NLRB to represent a group of employees, a larger unit is generally favorable for an employer because it is more ...
On April 4, 2016, the Los Angeles City Council just voted on their support of increasing California’s allotment of paid sick days for employees to twice the amount given under California’s Paid Sick Leave Law. This means employees would be allowed to earn six paid sick days during the course of the year (as opposed to only 3 under California’s current law). The law still needs to be drafted, but if it is passed, larger employers will need to be in compliance by July of this year, smaller employers (25 or less) would have a year to get fully compliant.
This comes on the heels of LA’s ...
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it received significantly more H-1B petitions than allowed under the statutory cap for fiscal year (FY) 2017. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. The number of petitions filed this year, 236,000, exceeded last year’s high of 233,000 petitions.
The USCIS began to issue receipt notices using the random, computer generated selection process or ...
Every employer offering a 401(k) plan is faced with the decision about what investment options to make available to participants through their plan. Investment options carry different risks as well as different costs. The amount of total assets in a 401(k) plan can affect the variety of investment options an employer can make available to participants. Typically, a greater variety is available to larger plans. Most employer/plan sponsors aim to provide a diverse offering in order to allow participants a wide variety of options in directing their own investments. In designing ...
The Eighth Circuit Court of Appeals recently affirmed a Nebraska federal court’s decision ruling that to constitute an ADA impairment, obesity, even morbid obesity, must be the result of a physiological disorder or condition. In the case of Morriss v. BNSF Ry. Co, Case No. 14-3858 (8th Cir. April 5, 2016), the court held that a morbidly obese job applicant rejected for a position as a railroad machinist could not show he was regarded as disabled under the ADA.
Melvin Morriss applied for a machinist position with BNFS Railway Company in March 2011. He was extended a conditional ...
The U.S. Department of Labor (DOL) recently announced a $1.1M judgment in favor of employees in the Gruber Systems Inc. Employee Stock Ownership Plan (ESOP). The department filed suit against Gruber Systems Inc., a California corporation, and its CEO in May of 2015 alleging they caused Gruber ESOP participants to lose money when the ESOP bought company stock at considerably more than fair market value. The DOL alleged that money used to fund stock purchases to shore up the company during financial troubles should have been used to fund the retirement accounts of Gruber employees. The ...
A recent decision from a NLRB Administrative Law Judge (“ALJ”) serves as yet another reminder that most private sector employers must allow employees some leeway to make work-related complaints, especially on social media. The employer in the case, Chipotle Services LLC, operates Chipotle restaurants nationwide. As readers likely are aware, Chipotle has received a great deal of negative press in recent months, but this recent decision was unrelated to food safety or illness issues.
Instead, this case arose after Chipotle management confronted an employee who used the ...
Back in November of last year, I wrote about Friedrichs v. California Teachers Association, “one of five cases to watch” during the Supreme Court’s 2015 term according to Washington’s The Hill newspaper.
At the beginning of the term, many observers had anticipated that the Court’s conservative majority would use Friedrichs to overturn its 1977 opinion in Abood v. Detroit Board of Education, a case which upheld “fair share” provisions in public sector union contracts as dues properly exacted for “collective bargaining, contract administration ...
The U.S. Department of Labor has issued the Persuader Rule which has been hotly debated and protested by employers and attorneys.
First proposed in 2011, the Persuader Rule amends the federal Labor Management Reporting and Disclosure Act to require employers and labor relation consultants (including attorneys) to submit detailed reports including the type of consulting or legal services provided and any fees paid.
Historically, under the “Advice Exception,” lawyers have been excluded from this reporting requirement, as long as they did not directly interact with ...
On March 11, 2016, the new rules regarding the STEM (Science, Technology, Engineering, Math) OPT program were posted in the Federal Registrar and will take effect on May 10, 2016.
The new STEM program allows students to be approved for work authorization for 24 months vs. the previous 17 month program and allows current students to apply for an additional 7 months of work authorization.
While the additional work eligibility is good news for both students and employers, the new rules subject employers to heighten compliance requirements including:
- Employers and students will be ...
On Tuesday March 22, 2016, the U.S. Supreme Court ruled against one of the world’s largest food processors, affirming a $5.8 million judgment. This ruling just made it a little bit easier for wage and hour plaintiffs to win class actions. In a 6-2 decision the Court held that plaintiff employees can use averages and other statistical analyses to establish class liability.
In 2007, workers at one of the meat-processing facilities sued the company for uncompensated wages alleging that they were entitled to overtime pay and damages because they were not paid for time spent donning and ...
A recent Second Circuit case, Graziadio v. Culinary Institute of America, Case No. 15-888-cv (Mar. 17, 2016), offers a sobering lesson for human resources personnel and supervisors who handle the administration of leave requests under the Family and Medical Leave Act (FMLA). The Court held that an HR Director may be liable as an employer, as a “person who acts, directly or indirectly, in the interest of an employer” toward an employee. Finding that the FMLA definition of employer is similar to the definition under the Fair Labor Standards Act (FLSA), the Court agreed with other ...
Readers of this blog know there is an intense debate in the courts over the application of Fifield v. Premier Dealer Servs., Inc., 993 N.E.2d 938, 943 (Ill.App 1st Dist. 2013). Fifield announced that restrictive covenants supported solely by an at-will employment relationship were invalid for lack of adequate consideration if the employee did not remain employed for two years after signing the contract. This applies even if the employee voluntarily terminated. The Illinois Supreme Court did not accept review of Fifield, so it is controlling law in Illinois. However, it has ...
Sure, you’ve heard that non-union employees are protected by the National Labor Relations Act (NLRA), too. But do you realize just how quickly the protections of the Act can come into play? If your front line managers are not properly trained, an employee’s attitude could quite literally turn a situation into a federal case.
A federal appeals court recently affirmed the decision of the NLRB against an employer in a case where a non-union employee engaged in conduct that most employers would consider as straight up insubordination, Staffing Network Holdings, LLC v. NLRB, 2016 BL ...
A recent case out of the Northern District of Texas demonstrates just how important it is to listen to the Department of Labor (DOL) when they come knocking on your door. (Solano v. Ali Baba Mediterranean Grille, Inc., 2016 BL 62687, N.D.Tex. No. 3:15-cv-00555, 3/2/16). Here, the DOL investigated allegations against the restaurant for failing to track time records, failing to properly pay a chef for the time he spent traveling between restaurants and improperly paying overtime on a bi-weekly basis instead of weekly. The DOL informed the restaurant of its improper pay practices, but ...
On March 1, 2016, the EEOC announced that it had filed its first two sex discrimination lawsuits based on sexual orientation. One of these cases, filed in the federal district court for the Western District of Pennsylvania, is based on allegations that a gay male employee was subject to anti-gay epithets and other offensive comments about his sexuality and sex life that eventually drove the employee to resign. The other case, filed in the District of Maryland, Baltimore Division, is based on allegations that a lesbian employee’s supervisor made comments regarding the employee’s ...
Effective January 1, 2016 all 53 EEOC field offices across the country have implemented the Commission’s new “Digital Charge System,” an online portal through which employers will receive and transmit information to the EEOC. From now on, all major communications between the EEOC and employers, including the Commission’s service of newly filed EEOC charges, will be transmitted through the online portal. In most cases, the EEOC will no longer mail paper copies of EEOC charges and related documentation to employers. Instead, the EEOC will send an email to the employer ...
Readers of this blog know that we counsel our employer clients to immediately investigate the facts as soon as an employee who is subject to a restrictive covenant engages in conduct that might violate it. This is because the right to obtain an emergency injunction blocking any prohibited conduct can depend on the promptness of the employer’s efforts at enforcement.
This point was underscored by a recent unpublished decision of the Illinois Appellate Court for the First District (Cook County). Although this is an Illinois case, the lesson applies to employers in any state.
A bit of strategic planning could have saved an employer from a federal jury’s $5.5 million verdict for a mechanic who claimed his accommodations were discontinued after eight (8) years. A heavy equipment mechanical repairman was subject to medical restrictions for lifting, climbing, and postural limitations. Despite these restrictions, he performed the essential functions of the job with accommodations. This all changed on December 28, 2011 when he returned to work from an unrelated gallbladder surgery; his new supervisor noted his arthritis-related work restrictions ...
Unless you’ve been avoiding the national news the last several months, you already know the Chicago Police Department (CPD) has been in the cross hairs of the Department of Justice for alleged civil rights violations. Just this past Friday, February 5, 2016, the Department made a new civil rights claim against the CPD based on employment discrimination. The court complaint filed on Friday in the Northern District of Illinois, entitled alleges discrimination based on national origin. It claims the CPD discriminated against applicants not born in the United States through its ...
Employers, including federal contractors, who are required to file annual Employer Information Reports (also known as EEO-1 reports) with the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), may soon have additional reporting requirements. Currently, employers with more than 100 employees and certain federal contractors with 50-99 employees, have to report the number of full-time and part-time employees by sex, race, ethnicity and job category on their EEO-1 reports.
The EEOC ...
As many prepare this week for Super Bowl parties to cheer on their favorite team, NFL teams’ treatment of cheerleaders serves as a reminder to employers that no one can escape wage and hour laws. Moreover, it serves as reminder that if businesses/franchises worth billions of dollars have made the mistake of misclassifying an individual as an independent contractor instead of an employee, then so can you.
Over the past few years, more than five NFL teams including the Buffalo Bills, Cincinnati Bengals, New York Jets, Tampa Bay Buccaneers and Oakland Raiders have faced class action ...
On January 20, 2016, the Supreme Court made it clear, in Montanile v. Board of Trustees of National Elevator Industry Health Benefit Plan, that ERISA plans wanting to enforce subrogation rights against a participant need to act quickly. If the participant spends all of his/her settlement funds on nontraceable items before the plan files suit for reimbursement, the plan is out of luck.
In December of 2008, plan participant, Robert Montanile, was severely injured when a drunk driver ran through a stop sign and crashed into his vehicle. The health plan, in which Montanile was a ...
Recently the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) reversed a District Court decision which dismissed a Title VII gender discrimination claim brought by an auto mechanic who is transgender, Chavez v. Credit Nation Auto Sales, LLC (11th Cir. Jan. 14, 2016). In reinstating the plaintiff’s claim, the Eleventh Circuit reaffirmed its earlier pronouncement that discrimination based on gender nonconformity is unlawful sex discrimination.
The employer claimed to have terminated the plaintiff for sleeping on the job. Because plaintiff ...
The ADA Amendments Act of 2008 (ADAAA) brought broad speculation that a large percentage of employees would qualify as “disabled” as defined under the amended ADA and employers would have to focus attention on engaging in the interactive process to identify a reasonable accommodation. While it is true that the ADAAA has increased the importance of engaging in the interactive process to review possible accommodations, it is still equally important to consider whether the employee is a “qualified individual with a disability” under the ADAAA. The 7th Circuit’s ...
Any federal government contractor or subcontractor can testify to how much work really goes into complying with Affirmative Action obligations. Here is just a quick, non-exhaustive checklist to highlight many of your affirmative action to-dos:
- Are you “listing” your job openings with the nearby unemployment agencies?
- Are you asking your job applicants to self-identify their gender, race, veteran status and whether they are disabled or not?
- Are you asking those individuals that you have given an offer of employment to self-identify again their veteran status and whether ...
A federal appellate court unanimously found that an individual’s difficulty with lifting his right arm above his shoulder, constituted a disability under the ADA Amendments Act of 2008, which amended the Americans with Disabilities Act of 1990 (ADA), Cannon v. Jacobs Field Services North America, Inc., Case No. 15-20127 (5th Cir., 1/13/16).
In this case, a construction firm offered the plaintiff, Michael Cannon, a job as a field engineer. Cannon participated in a pre-employment physical, which revealed a rotator cuff injury. The doctor cleared him for work, but only with ...
The Department of Labor’s Wage & Hour Division (“WHD”) issued an Administrator’s Interpretation today that establishes new standards for determining joint employment under the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”) and the Fair Labor Standards Act (“FLSA”). The issue of joint employment and who is the employer, for purposes of liability, is one that has become increasingly more contested and is part of the DOL’s crackdown on issues ranging from independent contractor status to the proposed rules regarding exempt/non-exempt ...
The recent Appellate Court decision in Oliver v. Illinois Workers’ Compensation Commission, et al., 2015 IL App. (1st) 143836 WC, serves as a reminder of the dangers employers face when they do not properly investigate alleged work accidents.
Most of us in the comp world know that an injured worker has 45 days to provide an employer notice of a work accident. However, in the Oliver case, the employer asserted that the accident had to be reported the day it occurred. As a result, no investigation was performed and benefits were quickly denied.
Not surprisingly, the Appellate ...
Finally! As of 1/3/2016, Illinois statutorily enhanced employers’ rights to conduct business through enacting statutory misconduct as a basis for terminating an employee and denying unemployment benefits. Other jurisdictions may follow suit to protect business rights.
Statutory misconduct now includes:
- Falsification of employment information (application, references, education/work history, SSN) is now terminable misconduct and allows denial of benefits.
- Failure to maintain reasonably required licenses, registrations, etc.
EMPLOYERS BEWARE! Not even the magical Mickey Mouse can escape lawsuits. Former employees of the Walt Disney Company filed complaints with the Equal Employment Opportunity Commission (EEOC), intending to sue the house of Mickey Mouse (and now even Yoda’s) for replacing them with foreign workers. Not only are former employees complaining because they were laid off, but they are also accusing Disney of hostile treatment. Two employees recently recounted to ABC news how they were given 90 days to train their replacements in order to receive the bonuses they were promised. The ...
The New Year is here! Economic signs are trending up, and indicate that hiring will be picking up in 2016. Because federal and state employment laws prohibit discriminatory job postings, and the administrative agencies are cracking down on both unintentional and intentional discrimination, care must be used to avoid drawing the attention of the government and other opportunist inquiries by simple “help wanted” posts.
What’s wrong with the ‘cool dude’ request?
It implies that the preferred candidate is: male, younger, a drinker, and has free time. This discriminates ...
Readers of this update know that Illinois radically changed restrictive covenant law in Fifield v. Premier Dealer Services Inc., 2013 IL App. (1st) 120327. In Fifield, the court required two years of at-will employment as consideration for a post-employment non-solicitation or non-compete clause entered into at the outset of employment, even if the employee voluntarily quit. The Illinois Supreme Court declined to review Fifield despite the requests of business groups and employer advocates. Since then, Fifield has remained controversial, with one appellate ...
Everyone rings in the New Year differently – some with a party with friends and family, sparkling grape juice with their kids, traveling to a new destination or watching the ball drop in Times Square. Whatever tradition you choose to bring in the new year, the one thing we can all count on is that there will be new employment laws waiting for you on your desk come January 2nd (if not already).
Paid sick leave laws in many states are requiring that you pay your employees to take time off when ill, to care for an ill family member, or to go to the doctor. The federal Department of Labor is even ...
Late yesterday afternoon, the Internal Revenue Service (IRS) announced it was extending the due dates for certain 2015 Affordable Care Act (ACA) information reporting requirements. The welcome delay gives employers almost two additional months to furnish statements to employees and close to three additional months to file required returns with the IRS.
Specifically, Notice 2016-4 extends:
- the due date for providing individual Forms 1095-C and 1095-B to employees from February 1, 2016, to March 31, 2016
- the due date for filing Forms 1094-B, 1094-C and 1095-C with the IRS from ...
Employers are receiving a temporary reprieve from the controversial “Cadillac Tax” on health plans as part of a large spending and tax bill signed into law by President Obama on Friday, December 18, 2015. The Consolidated Appropriations Act (the “Act”) delays the effective date of the Affordable Care Act’s (ACA’s) excise tax on so-called high cost health plans, known as the “Cadillac Tax,” until January 1, 2020.
The Cadillac Tax, previously scheduled to take effect on January 1, 2018, is a 40% excise tax on employers and insurers who offer health insurance plans that ...
Have you noticed that an employee’s requests for leave tend to occur on a Friday or Monday? Is an employee suddenly unable to work immediately before or after holidays? It is not unusual for employers to experience FMLA abuse, especially around the holidays. The following are a few practices that can help you combat FMLA abuse:
- Be Vigilant and Be Aware – Having a system that tracks when employees take FMLA leave can help you identify patterns of abuse and act quickly to investigate and address them appropriately.
- Control Scheduling – FMLA regulations require that absences for ...
A Fair Labor Standards Act (FLSA) collective action lawsuit, filed over five years ago by Chicago police officers who claimed they were not paid overtime for their off-duty use of work-issued BlackBerrys, went to a bench trial in August, and the federal judge recently ruled in the City’s favor. Although the court, in Allen, et al. v. City of Chicago, Case No. 10-C-3183 (N.D. Ill. Dec. 10, 2015), found that the police officers were performing compensable overtime work on their devices while off-duty, the police officers failed to prove that there was an unwritten policy to deny them ...
Last month, in Porter v. Houma Terrebonne Housing Authority Board of Commissioners (“HTHA”), the U.S. Court of Appeals for the Fifth Circuit ruled that a former employee’s claim of unlawful retaliation based on complaints of sexual harassment should proceed to trial.
Such a ruling is not necessarily unusual, but what makes this one unique is the court held that an employer’s refusal to let an employee rescind her resignation can be an “adverse employment action”—one of the three prima facie elements of a claim for unlawful retaliation under Title VII of the Civil ...
The current version of the Form I-9 is set to expire on 3/31/16. In advance of the expiration, USCIS has issued proposed changes to the Form I-9 for public comment. The new version would allow employers to complete the form on their computer with some imbedded prompts assisting them in the completion of the form. This is an attempt to reduce technical errors commonly made on the Form I-9. Employers would still be able to complete the form by hand if they choose to do so.
Some of the proposed changes included are:
- Electronic checks on certain fields to ensure accuracy
- Drop down lists for ...
On December 3, the Federal Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) affirmed dismissal of a failure to accommodate claim brought by an employee bumped from a job assignment that accommodated his disability after his employer opened that assignment to seniority-based bidding pursuant to the terms of the collective bargaining agreement (CBA).
After a series of injuries and several extended leaves of absence, the employee was released to return to work with permanent restrictions that prevented him from performing many of the physically demanding ...
On December 1, 2015, in conjunction with World AIDS Day, the EEOC issued two new guidance documents addressing the legal rights available to employees with HIV/AIDS under the Americans with Disabilities Act (“ADA”).
While these documents specifically reference HIV and AIDS, the reality is that this new guidance has tremendous value to human resources professionals and other management decision-makers who may be faced with accommodation requests based on virtually any medical condition. Moreover, although the guidance is not specifically directed to employers, again the ...
Medical marijuana (MMJ) is now permitted in 23 states and Washington D.C. Out of those 23 states four of them permit recreational use. Though it remains illegal on the Federal level, the U.S. Department of Justice recently announced the release of over 6,000 inmates convicted of nonviolent drug charges. This begs the question – are you prepared for medical cannabis in the workplace?
Nondiscrimination Policies
Most states with MMJ prohibit discrimination on the basis of a worker or applicant being a registered patient. However, employers should also carefully consider that a ...
In June 2014, the Supreme Court issued a decision impacting “fair share” provisions in public sector collective bargaining agreements. By a 5-4 vote, the justices ruled in Harris v. Quinn that home health care workers in Illinois could not be compelled to financially support a union they did not want to join. Writing for the majority, Justice Samuel Alito noted that the “primary purpose of permitting unions to collect fees is to ‘prevent nonmembers from free-riding on the unions’ efforts, sharing the employment benefits obtained by the union’s collective ...
A couple of months ago, we discussed the National Labor Relations Board’s (NLRB) startling decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), in which it determined that a non-union company shared joint employer liability, under the National Labor Relations Act (NLRA), with a labor contractor at one of its recycling plants. The Board held that two or more entities are joint employers if each one possesses sufficient control over employee’s essential terms and conditions of employment. Employers were in an uproar over the decision ...
A recent 7th Circuit case, Hooper v. Proctor Health Care, Inc., Case No. 14-2344 (7th Cir. 2015), serves as a reminder that a plaintiff cannot state a failure to accommodate claim under the Americans with Disabilities Act (“ADA”) if the plaintiff’s physical or mental limitations do not affect the plaintiff’s ability to perform essential job functions.
In Hooper, an employee diagnosed with bi-polar disorder prior to being hired by Proctor, requested time off after an incident that took place outside of work. He disclosed his diagnosis to the Director of Human ...
Can I regulate and/or discipline an employee for using alcohol outside of work?
While you might think the answer is pretty straightforward – it is NOT. Attorneys often respond by saying, “it depends.”
If an employee’s use of alcohol (or any other legal product) outside of work is negatively impacting their performance or resulting in them coming to work impaired, then you can issue discipline in line with your policies and procedures for that conduct.
What if it is not impacting their performance and they are not coming to work drunk?
Again the answer is the dreaded – “it ...
The Seventh Circuit recently took another shot at the increasingly rebuked McDonnell Douglas framework for determining employment discrimination claims. Seasoned employment attorneys can recite the McDonnell Douglas burden-shifting analysis in their sleep; in fact, it’s likely been the topic of some sleep-talking rants for some. Under the analysis, established by the U.S. Supreme Court in 1973, if a plaintiff lacks “direct” or “smoking gun” evidence of discrimination, which they usually do, their claim may still survive if they show that (1) they are a ...
Last week a Federal District Court ruled a disgruntled former employee could proceed with her interference and retaliation claims under the FMLA even though she never actually took any FMLA-qualifying leave. The case serves as a reminder of just how easily an employee triggers the statute’s broad protections.
The former employee submitted completed FMLA paperwork relating to a chronic condition and the employer approved her request to take intermittent leave, as needed, in the future. She never actually took leave under the statute and, in fact, she did not even ask for any ...
On the final day of September, the EEOC filed a sex discrimination lawsuit against the Coca Cola Bottling Company of Mobile, Alabama. The EEOC frequently files lawsuits, but this lawsuit had an additional claim not often seen, which may be a wake-up call to many employers.
That claim was based on the bottling company’s alleged failure to preserve employment records—specifically, employment applications.
Federal regulations require the retention of employment applications “for a period of one year from the date of the making of the record or the personnel action involved ...
California Governor Jerry Brown has signed into law an amendment to California’s gender pay equality law to make it one of the toughest equal pay laws in the nation. The new law takes effect January 1, 2016, giving California employers just a couple of months to prepare.
California and federal law currently prohibit employers from basing pay on an individual’s gender. The California legislature determined that a gender gap of 16 cents on the dollar still exists notwithstanding current laws. Accordingly, the new law includes strict standards with the aim of closing the gender pay ...
Martin Lomasney, an early 20th Century Boston politician, once said “never write if you can speak, never speak if you can nod, never nod if you can wink.” Just last week, the United States Court of Appeals for the Seventh Circuit issued a decision illustrating the dangers of email communications and gave new life to a plaintiff’s claims that the reasons for her termination were the result of discrimination on the basis of her military service and disability.
In 2012, LuzMaria Arroyo, a United States Army Reservist and Veteran, sued her former employer Volvo Group of North ...
In May 2015, the U.S. EEOC announced that 11 of 53 offices would begin to implement the ACT Digital Pilot Program, which facilitates communication between the EEOC and parties. The pilot program recently has been expanded to more offices, and appears to be here to stay. While this modernization and electronic communication appear appropriate at first, employers must be aware of the potential for significant pitfalls.
Employer Benefits:
Employers can use an online portal to obtain copies of discrimination charges, submit responses, and communicate with the EEOC. Employers are ...
The EEOC and NLRB continue to actively review severance agreements, in addition to social media policies and employee handbooks. The provisions that draw the most scrutiny are waivers or releases of claims, confidentiality and non-disparagement provisions.
Any attempt to interfere with an employee’s right to file an administrative charge, communicate with the agencies, or participate in agency investigations, are troublesome. Remember that while an employee can waive or release an EEOC or NLRA claim, the employee can still file a charge of discrimination or an unfair labor ...
Last week, the National Labor Relations Board (“NLRB”) – although divided – affirmed that Southcoast Hospitals Group violated unionized workers’ rights under Section 8(a)(3) and (1) of the National Labor Relations Act when the hospital created an open position hiring and transfer policy that gave unrepresented workers preference over unionized employees at the non-unionized hospitals.
Southcoast, located in Massachusetts, was comprised of 3 hospitals and 20 ancillary locations. The unionized employees made up 215 of the 550 employees who worked at one of the three ...
Union job targeting programs, also known as “market recovery funds,” are used by unions to provide a bidding advantage to union contractors. As part of these programs, unions collect voluntary deductions from members’ wages, which are then used to subsidize union contractors’ bids on building projects. With the union subsidy, the union contractor is able to successfully bid on projects that may otherwise go to nonunion contractors. The subsidy further allows employees to be paid at union scale, rather than the lower wages set forth in the contractor’s bid. These ...
On September 10th, the Office of Federal Contract Compliance Programs (“OFCCP”), a division of the US Department of Labor, published the final rule to implement Executive Order 13665, which prohibits federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant. The rule allows these individuals to file a discrimination complaint with OFCCP if they believe that their employer fired or otherwise discriminated against them for ...
Under the Family Medical Leave Act (“FMLA”) employees do not have to expressly say they need “FMLA” or otherwise invoke any of its provisions when requesting leave that would qualify under the FMLA. As such, employers have to be vigilant and question whether an employee’s request or need for leave qualifies for FMLA leave.
However, employers should know that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir ...
On September 4, a Federal Appeals Court upheld a National Labor Relations Board (NLRB) decision finding management comments to employees during the early stages of a union organizing campaign unlawful. Section 8(a)(1) of the National Labor Relations Act makes it unlawful “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 rights include “the right to self-organization, to form, join, or assist labor organizations.” The NLRB and the Courts interpret this language broadly.
Back in 2011 rumors about a possible ...
H-1B employee mobility makes USCIS uncomfortable.
In fact, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) set a new precedent via the Matter of Simeio Solutions LLC. The AAO determined that a worksite relocation outside of the intended area of employment on the original H-1B petition qualifies as a material change to the petition. H-1B employers are now required to file an amended petition for the employee before placing them at the new worksite. The U.S. Citizenship and Immigration Services finalized guidance based on the Simeio Solutions decision in ...
On Monday, President Obama signed an Executive Order outlining the paid sick leave benefits that many federal contractors will be required to provide as early as January 1, 2017.
A wide range of federal contracts entered into on or after January 1, 2017, and any subcontracts entered into thereunder, will be required to include language under which employees will earn no less than one hour of paid sick leave for every 30 hours worked under covered contracts.
That leave may be used by an employee for absences due to any of the following:
(i) Physical or mental illness, injury, or medical ...
Over the last few years the National Labor Relations Board (“NLRB”) has been cracking down on employee confidentiality mandates. An employer can legally require employees to keep trade secrets and legally protected information confidential, but according to the NLRB’s most recent ruling on August 27, 2015 an employer cannot even “recommend” that employees keep internal investigations confidential (Boeing Co., 362 N.L.R.B. No. 195, 8/27/2015). The Board ruled that Boeing Company’s revised policy that “recommends” employees refrain from discussing HR ...
The Internal Revenue Service (IRS) recently released its second set of guidance discussing approaches to the excise tax on employer-sponsored health coverage, often referred to as the “Cadillac tax.” Starting in 2018, the Cadillac tax imposes a 40% tax on the cost of employer-sponsored health coverage in excess of $10,200 for self-only coverage and $27,500 for family coverage. Intended to target overly-generous employer-provided health plans, the Cadillac tax continues to be one of the most controversial parts of the Affordable Care Act (ACA) as dollar thresholds set in ...
As we anticipated and previously discussed, on August 27, 2015, the National Labor Relations Board (NLRB) issued its ruling in the closely watched Browning-Ferris Industries of California, Inc. (BFI) case (Case 32-RC-109684). In rejecting over 30 years of precedent and the underlying Administrative Law Judge’s ruling on the issue, the NLRB’s pro-union majority established a new standard for determining joint-employer status. While the decision related to a company’s engagement of a subcontractor supplying workers, the NLRB’s new joint-employer standard will ...
Failure to document performance or conduct problems is a common mistake employers make. Typically, employee handbooks contain provisions requiring periodic performance reviews. Similarly, handbooks contain discipline provisions that include procedures dealing with the issuance of warnings related to the violation of work rules. How employers use and apply these provisions can make the difference in successfully defending claims.
A recent decision out of the United States Court of Appeals for the District of Columbia illustrates how critical it is to properly document an ...
Recently, a Federal Appellate Court held that there was no adverse action under Title VII for an employee who was suspended with pay during an investigation. Jones v. Se. Penn. Transp. Auth., — F.3d—, No. 14-3814 (3rd Cir. Aug. 12, 2015).
The underlying facts are straight forward and typical of an employment discrimination suit:
- The supervisor suspected an employee was guilty of wage theft.
- The supervisor suspended the employee with pay.
- The employee informed the company’s EEO/Human Resources Department that she intended to file a complaint against the supervisor; ...
In the opening sentence of its recent decision, Southern New England Telephone Co. v. NLRB, the federal D.C. Circuit Court of Appeals stated: “Common sense sometimes matters in resolving legal disputes.” If only that were always true in labor disputes.
The legal dispute in this matter centered on the fact that the company prohibited publicly visible employees—those who had direct contact with customers or the public—from wearing union t-shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. These shirts were part of a campaign by the union ...
In a recent decision, Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds, 362 NLRB No. 155 (Aug. 4, 2015), the National Labor Relations Board (NLRB) held that an employee’s posting of a written warning at his cubicle was protected, concerted activity. The employee, Frederick Allen Moss, received the written warning from his supervisor for refusing to stop using his electronic tablet during a work meeting. In response, Moss laminated a copy of it and posted it next to his computer so that it was visible to anyone who entered his cubicle or stood at the ...
On July 22, 2015, OSHA issued an underground construction company in Texas six willful and nine serious citations with fines totaling $423,900, stemming from a trench collapse in February of 2015. While the citations and fine amount are not unusual under the new regime, the press release issued by OSHA following the issuance of the citations goes to great lengths to embarrass and harass the company, even identifying the company’s workers compensation insurer by name—presumably, in an attempt to try and prevent the company from obtaining insurance in the future. See the press ...
Green Cards May No Longer Always Contain a “Signature”
Employers should be aware that some Green Cards (“permanent resident cards”) now have an image stating “Signature Waived” on the front and back of the card where a signature would normally be located instead of the permanent resident’s actual signature. U.S. Citizenship and Immigration Services (“USCIS”) has indicated that these cards are issued to people entering the U.S. for the first time as lawful permanent residents after obtaining their immigrant visa abroad from a U.S. Embassy or consulate. This ...
Although not prevalent, and seemingly counterintuitive, some federal courts have recently addressed the issue of subordinate sexual harassment of their supervisors. This conundrum is especially interesting as employer liability is usually determined by the status of the harasser, including a subordinate, co-worker, or supervisor of the victim. Under Illinois law there is strict liability for employers when the harasser is a supervisor of the victim – i.e., there are no defenses available to an employer if sexual harassment is shown.
Under both state and federal law ...
The Seventh Circuit recently affirmed summary judgment for the employer in Miller v. St. Joseph County, a race discrimination case, and in doing so applied what may prove to be a streamlined standard for determining whether employment discrimination plaintiffs can survive summary judgment.
The plaintiff in Miller was a long-time employee of the county’s police department who sought several promotions which he did not receive. He alleged, among other things, that the promotion denials, a temporary assignment he disliked (but which did not change his compensation ...
In the past, dress codes were straightforward. Depending on the nature of the business, they required a “neat, clean uniform” or perhaps “professional attire” and banned tube tops and flip flops. But as visible body art becomes more mainstream, many employers find themselves struggling to decide whether and where to draw the lines when drafting a personal appearance policy that works for their business.
As a starting point, body art itself is not a legally protected characteristic so bans are generally permissible. However, employers should be mindful that some tattoos ...
On July 15, 2015, the U.S. Department of Labor (DOL) issued an Administrator’s Interpretation addressing the distinction between employees and independent contractors in the Fair Labor Standards Act (FLSA).
The DOL has aggressively pursued potential misclassifications of employees as independent contractors in recent years. Indicative of that aggressive approach, the interpretation states that most workers are employees under the FLSA. While that statement is walked-back somewhat in other parts of the interpretation, businesses that rely heavily on independent ...
In late June, the appellate court for the first district reiterated that employment lasting less than two years is inadequate consideration to support enforcement of a post-employment restrictive covenant. In McInnis v. OAG Motorcycle Ventures, a motorcycle salesman filed a lawsuit seeking to have his non-competition agreement declared invalid because he resigned 18 months after signing the agreement. The employer counterclaimed seeking an injunction to enforce the restrictive covenant. The salesman won.
The court came to this conclusion after examining the 2013 first ...
The Trade Preferences Extension Act of 2015 (“Trade Bill”), signed into law by President Obama on June 29, significantly increases potential penalties for employers and insurers that fail to comply with the Affordable Care Act (ACA) reporting requirements, beginning in early 2016.
As a reminder:
- IRS Code 6056 requires employers with 50 or more full-time equivalent employees to file reports with the IRS annually stating whether the employer offered health coverage to full-time employees and their dependents during the preceding calendar year.
- IRS Code 6055 requires all ...
Recently, a California labor commissioner found that an Uber driver was an employee and not an independent contractor (“IC”), awarding the driver over $4,000 in expenses (Uber Techs., Inc. v. Berwick, CGC-15-546378 (Cal. Sup. Ct. June 16, 2015)). Similar lawsuits, including class action matters, are being filed around the country. The implications for Uber are huge: unemployment taxes, workers’ compensation insurance, minimum wage, overtime, and third-party tort liability to start.
What is so surprising about this ruling is that Uber drivers seem to ...
The Older Workers Benefits Protection Act (OWBPA) amended the Age Discrimination in Employment Act (ADEA) back in 1990 to specifically permit bona fide seniority systems and voluntary early retirement incentive plans. Along with these allowances, the OWBPA mandated strict requirements for ADEA waivers and disclosures for group termination. The provisions are very technical and have tripped up many unsuspecting employers.
To be effective a waiver must be “knowing and voluntary.” That sounds straightforward, but the statute specifically spells out what ...
The City of Chicago just issued new rules clarifying the Chicago Minimum Wage Ordinance with respect to the minimum wage for tipped employees, overtime calculations for tipped and non-tipped employees, and complaints against employers.
The Minimum Wage and Tip Credit for Tipped Employees
The Rules clarify that the minimum wage for tipped employees is $10.00 and that Section 1-24-030(a)(1) sets forth the minimum wage minus tip credit that tipped employees may be paid.
As of July 1, 2015, the minimum wage minus tip credit is $5.45, or the state minimum wage of $8.25, minus the state ...
Today, the U.S. Department of Labor (“DOL”) has announced that they are issuing a proposed rule to increase the minimum salary requirements under the Fair Labor Standards Act for exempt employees. The final proposed rule will be issued in the Federal Register and will provide a comment period for the public.
The proposed rule sets forth guidance and requests comment on the following proposed changes:
- Set the minimum salary level to qualify for the white collar exemptions at 40% of the national weekly earnings for full-time salaried employees ($921 per week or $47,892 ...
This Wednesday, July 1, 2015, Chicago’s Minimum Wage Ordinance (Chicago Municipal Code §1-24) goes into effect, increasing the minimum wage to $10.00 per hour for non-tipped employees and $5.45 for tipped employees.
IMPORTANT NOTICE REQUIREMENTS: All employers that maintain a business facility within the geographic boundaries of Chicago AND/OR are subject to one or more of the license requirements in Title 4 of the Municipal Code of Chicago are covered by Chicago’s Minimum Wage Ordinance and MUST do the following starting July 1st:
- Post Chicago’s Minimum Wage Poster by ...
California
Gov. Jerry Brown signed into law Assembly Bill 1522, the “Healthy Workplaces, Healthy Families Act of 2014.” Under this new law, effective July 1, 2015, California employers, with few exceptions, must provide at least 24 hours (3 working days) of paid sick leave per year to their employees. Read more here!
Massachusetts
On November 4, 2014, Massachusetts voters approved a ballot referendum requiring Massachusetts employers to provide paid sick leave. The new law will take effect on July 1, 2015. Massachusetts joins California and Connecticut as states ...
In a major decision announced earlier today, the Supreme Court upheld the tax credits under the Affordable Care Act (ACA) in states that have a federal health care exchange, affirming the 4th Circuit’s ruling in King v. Burwell. The Court’s ruling confirms the legality of tax credits for the purchase of individual health coverage in the 37 states that have a health care exchange run by, or in partnership with, the federal government – including Illinois, Indiana, Wisconsin and Missouri.
At issue was the interpretation of language in Section 36B of the ACA ...
OSHA continues to focus enforcement efforts on whistleblower/retaliation claims. Whistleblower claims have been on the rise and this trend is expected to continue for the coming years. OSHA recently updated its Whistleblower Investigations Manual to offer clarity to remedies and settlements when handling a whistleblower claim under the Act.
The revised manual states that in some cases OSHA may issue a preliminary reinstatement and employers must make a bona fide job offer upon receipt of such findings. This would be a bold order, but it might be used with greater frequency as OSHA ...
Erratic behavior, caused by an underlying medical condition, does not necessarily mean a free pass under the Americans with Disabilities Act (ADA). In March, the Eighth Circuit Court of Appeals, in Walz v. Ameriprise Financial, Inc., upheld the termination of a bipolar employee, finding that the termination did not violate the ADA. Identifying and accommodating employees with overt physical disabilities is substantially easier than accommodating behavior that is disruptive and/or erratic and caused by mental illness. Because of the difficulty in addressing these types of ...
On June 15, 2015, the Colorado Supreme Court upheld the appellate court’s ruling that employers can lawfully terminate employees for use of medical marijuana outside of work in compliance with a drug free workplace policy in Coats v. Dish Network, 2015 CO 44 (June 15, 2015).
This is an important decision for employers as many of the state laws “legalizing” marijuana for medical and/or recreational use have been recognized as providing protections from criminal laws, but are unclear as to how much, if any, civil or employment protections are provided to employees under ...
On June 1, 2015, the U.S. Supreme Court decided EEOC v. Abercrombie & Fitch Stores, Inc., ruling that it was unlawful for an Abercrombie clothing store to reject an otherwise qualified applicant because, as a practicing Muslim, she wore a headscarf.
That rejection arose from Abercrombie’s unfortunate application of the company’s “Look Policy,” which prohibited employees from wearing “caps”—a term that the Look Policy did not specifically define. Abercrombie believed—but was not certain, as there was no discussion of the issue with the applicant—that the ...
The articles claiming the U.S. Supreme Court decision in Tibble v. Edison International are plentiful. Each one seems to claim with a great sense of urgency that a new increased liability is now imposed on employers. If you read enough of them, the sky seems to be falling on all those who operate and administer 401(k) plans. In reality, most of these articles appear to be quoting language from the decision completely out of context. Where an employer has been advised properly, Tibble should not require any change in the administration of an employer’s 401(k) plan.
A recent court decision from the Eastern District of New York found that posting a summary plan description (SPD) on a company Intranet, without additional notice to participants, does not satisfy the electronic disclosure rules for employee benefit plans under ERISA.
In Thomas v. CIGNA Group Ins, an employee was participating in her employer’s life insurance plan at the time she became disabled. She stopped working and ceased paying the insurance premiums. The life insurance plan included a waiver of premium provision under which a disabled employee could request that life ...
Good news: Unlike employees, an independent contractor (“IC”) is not eligible for unemployment benefits when the work relationship terminates.
Bad news: When a former IC files an unemployment claim (and they sometimes do) or the government disagrees with the IC status (either in approving a claim or performing an audit), whether the IC will be denied benefits often depends on whether the IC:
A. Is free from control and direction; and
B. Performs services outside the usual course of business for the enterprise for which such service was performed; and
C. Is engaged in an ...
The Illinois Appellate Court’s latest decision could make defending cases where an injured worker has permanent restrictions more challenging and costly. It increases the importance of co-opting with a trusted workers’ compensation and employment attorney earlier in the overall process.
However, the same decision exemplifies why disputing certain cases can still yield good results if done properly. Over the years and at an increasing rate, we hear insured’s and claims professionals wondering aloud if there is a point to litigating or denying and compromising ...
Moments after President Obama announced that he would be expediting H-4 work authorizations last November, I received a call from a client inquiring about how to start the application process for his wife. I can understand their desire to jump on the opportunity. The green card acquisition process can drag on for years, testing the patience of many foreign nationals and frustrating their spouses who want to work, but who cannot by law. A dependent spouse’s inability to work can strain the couple’s economic viability and their marriage and prompt them to consider moving to ...
As California employers are well aware, the California Family Rights Act (CFRA) gives employees certain leave rights for medical conditions, similar to the federal Family & Medical Leave Act (FMLA). However, starting July 1, 2015, the regulations are updated to align more with FMLA in certain areas and to clarify areas where CFRA is different than FMLA.
CFRA alignment includes:
- “Covered employers” now contains successors in interest and joint employers are defined similar to FMLA;
- Spouse is defined to include same-sex spouses as FMLA;
- When calculating the 12 months of ...
In a 2-1 decision, the National Labor Relations Board (NLRB) issued a decision against an auto dealer, finding that the company violated the National Labor Relations Act (act) by implementing and maintaining: (1) a 2010 social media policy that required employees to identify themselves when posting comments about the company, its business, or a policy issue and prohibited employees from using the company’s logo in any manner; and (2) a 2010 dress code policy that prohibited employees from wearing pins, insignia or other message clothing. Boch Imports, Inc., 362 NLRB No ...
Amid much anticipation, the Court unanimously held in Mach Mining, LLC v. EEOC that under Title VII, the EEOC must attempt to conciliate prior to filing suit against an employer. U.S. Sup. Ct., No. 13-1019 (Apr. 29, 2015). Title VII’s enforcement mechanism governs employment discrimination and retaliation claims related to race, color, religion, sex/pregnancy, national origin, age, and disability. Under Title VII, the EEOC’s duty is to endeavor to eliminate discrimination by informal methods of conference, conciliation and persuasion and to insist upon ...
The Americans with Disabilities Act (ADA, ADAAA) and Rehabilitation Act, which incorporates most of the ADA standards, prohibit discriminating against employees based on their disabilities. Indeed, with the ADAAA amendment, recent court decisions have broadened the scope of what is considered a disability, as well as what steps an employer must take in order to comply with the law.
In doing so, employers may feel that their hands are tied behind their back in dealing with employees who perform poorly and/or act out at work. However, just because an employee is ...
There have been very few if any health care policies as controversial as the Affordable Care Act (ACA). One of its most talked about provisions, the contraception mandate, again made headlines this past month, especially here in the Seventh Circuit. Unless you were living under a rock or enjoying a tropical vacation without Wi-Fi last July, you’ve heard of Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), the Supreme Court decision that held corporations controlled by religious families cannot be required to pay for contraception coverage for their female workers, contrary to ...
Last week, the National Labor Relations Board (board) filed a legal brief in an ongoing federal lawsuit over the viability of a multi-part right-to-work law implemented through a county-wide ordinance in Hardin County, Kentucky. Among other things, the ordinance at issue prohibits the use of union-security provisions in collective bargaining agreements, and also regulates hiring halls, dues check-off, anti-coercion and discrimination provisions, and the penalties for violations of Section 8 of the National Labor Relations Act. The board’s central argument is that ...
The EEOC officially published proposed rules applying the Americans with Disabilities Act (ADA) to employer wellness programs on April 20, 2015. The public comment period ends June 19, 2015.
Wellness programs, often offered as part of group health plans, are programs designed to improve employee health and reduce health care expense. Wellness programs vary widely and may include incentives encouraging employees to participate in smoking cessation or weight loss programs, or undergo health risk assessments or biometric screenings.
Despite rules applicable to wellness ...
Not exactly—but it is quite useful, nonetheless.
Recently, the Office of the General Counsel for the National Labor Relations Board issued a report on lawful and unlawful employee handbook rules. And while the information provided in the report does not have the force of law, the guidance is quite detailed and it provides insight into what, for the moment, is the board’s approach to enforcement on employee handbooks.
What the report makes clear is that context is key to determining whether an employee handbook provision will be considered lawful or not. For instance, it is ...
Last month OSHA published another bulletin as part of its series for providing guidance on safety and health compliance with respect to temporary workers. This particular bulletin reiterated OSHA’s position that temporary employees have the same rights and protections as all other covered employees, including protection against retaliation for engaging in protected activity. OSHA stressed that a temporary employee who believes he or she is retaliated against for reporting injuries, participating in OSHA inspection, raising safety concerns or complaints, or engaging in ...
The IRS and Treasury Department recently issued Notice 2015-16 discussing initial approaches to implementing the 40% excise tax imposed on high-cost health plans under the Affordable Care Act (ACA). This notice is the first step in the process leading to final regulations.
Beginning in 2018, the excise tax, also called the “Cadillac Tax,” will impose a 40% tax on the cost of employer-sponsored health plans that exceeds certain thresholds. The tax may affect few plans initially, but is expected to affect many more over time as the cost of health care grows faster than inflation.
The Federal Motor Carrier Safety Administration Regulations (FMCSR) set forth rules and regulations for employment applications involving applicants applying to drive commercial motor vehicles. (See 49 C.F.R. § 391.21). Section 391.21 has been adopted in most states (for example, Illinois law recognizes Section 391.21 pursuant to Title 92 of the Illinois Administrative Code).
FMCSR specifically requires applicants completing a commercial driver application to (1) list all violations of motor vehicle laws or ordinances (other than parking) of which the applicant was ...
On March 25, 2015, the U.S. Supreme Court issued the highly anticipated Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) decision, Young v. UPS, no. 12-1226.
The Court found a genuine issue of facts as to whether UPS failed to accommodate in 2006 a part-time delivery driver, restricted from 70 to 20 pounds lifting during her pregnancy, even though it accommodated other drivers injured on the job or otherwise disabled, as well as drivers who temporarily lost DOT certification. As a result, the Court remanded the case to the appellate court to ...
This is the first time since 1974 that the protected classes for affirmative action contractors have been modified. The effective date for compliance is April 8, 2015 for any new or modified contracts (more than $10,000). At this time, you must begin implementing the new requirements related to sexual orientation and gender identity applicants and employees. The OFCCP held webinars in March to give contractors guidance on what they are expecting out of these new requirements. Here is what we learned:
- It is encouraged that all affirmative action contractors should follow these ...
Despite labor’s historical stronghold in the Midwest – Indiana, Michigan, Iowa, Tennessee and now, Wisconsin – have become Right-to-Work (RTW) states. Is Illinois next? What does this mean for employers?
RTW In a Nutshell: Money and Power
In the 25 states that have not passed RTW laws, including Illinois and Missouri, a union security clause in a collective bargaining agreement requires all employees in the bargaining unit to either be a dues/fee-paying union member – or a non-member who pays “fair share” fees. The battle is over the non-member “fair share” ...
The Cook County Board of Commissioners recently passed an ordinance which prohibits any company or individual who is found guilty or liable of wage theft from obtaining Cook County procurement contracts, business licenses or property tax incentives for up to five years. The ordinance is effective May 1, 2015. Cook County is now the largest municipal entity in the United States to have passed an ordinance of this nature.
Under the new Cook County Wage Theft Ordinance, businesses found to have violated the Fair Labor Standards Act (FLSA), Illinois Wage Payment and Collection Act ...
Despite winter-like weather across much of the country, it is March and that means college students are searching for internships. On January 30, a federal appeals court heard oral arguments on a pair of class action lawsuits in which interns in the film and publishing industries sued for unpaid wages. Although the court has yet to rule, there are steps your organization can take now to avoid this type of litigation.
Under the FLSA anyone who performs work is entitled to compensation. For nonprofits, federal regulations clarify that “volunteers” who freely serve public agencies ...
Ever since the NLRB attempted to put into effect its ambush (aka “quickie”) election rule on April 30, 2012, we have addressed its back and forth. As a reminder, this rule required employers to counter union organizing campaigns in 14-21 days versus the previous 42 day requirement. The first action to block this new rule occurred on May 14, 2012 when a U.S. District Court ruled the rule was invalid because improper procedure had been used to pass it. U.S. Chamber of Commerce et. Al. v. NLRB (D.C. Cir. 1:11-cv-02262). However, the court did not clarify if the rule itself was ...
On February 25, 2015, the U.S. Department of Labor issued a final rule modifying the definition of “spouse” under the federal Family and Medical Leave Act.
This final rule, which will take effect on March 27, 2015, is a shift from the current language of 29 C.F.R. §§ 825.102 and 825.122(b), which defines “spouse” to mean “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”
As of March 27, the definition of “spouse” under the FMLA ...
Timing may not be everything when it comes to employment retaliation claims, but it is a critical factor. An employee who can show adverse employment action taken on the heels of engaging in some type of protected activity (e.g. complaining to the EEOC) is in prime position to assert the employer unlawfully retaliated. A fundamental step to proving retaliation is to show the employer was aware of the protected activity at the time of the adverse employment decision. Naturally, an employer that is unaware of protected activity cannot retaliate against an employer for engaging in ...
On January 26, 2015, the U.S. Supreme Court established a new standard for the vesting of collectively bargained retiree medical benefits, holding in M&G Polymers USA, LLC, et al. v. Tackett, et al., that collective bargaining agreements (CBAs) must be interpreted using ordinary principles of contract law and rejecting the presumption that collectively bargained retiree welfare benefits vest for life. M&G Polymers, No. 13-1010 (U.S. Jan. 26, 2015).
In M&G Polymers, a group of retirees brought suit against their former employer after the announcement that retirees ...
On March 9, 2015, the U.S. Supreme Court issued a ruling in Perez v. Mortgage Bankers Association that should put all employers on notice. In this decision, the Court held that federal agencies, specifically the Department of Labor (DOL), do not need to go through the same rulemaking procedure of providing notice to the public and soliciting input before issuing their own interpretive guidance, even if it contradicts the agency’s prior guidance.
In Perez, the DOL issued opinion letters that stated mortgage loan officers were not eligible for overtime under the ...
Beginning January 1, 2015, California employers (with 50 or more employees) must provide anti-bullying training to supervisors within 6 months of assuming a supervisory role, and during biannual anti-sexual harassment training. California broadly defines workplace bullying as: “Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” This may include:
- Repeated infliction of verbal abuse (e. g., derogatory remarks, insults, and ...
Many federal contractors had their 2014 annual affirmative action plans in place prior to the March 24, 2014 effective date for contractors to begin analyzing and maintaining a hiring benchmark for protected veterans, as well as a utilization goal for disabled individuals. However, the time is nearing to update those plans and be compliant with the new regulations. What does this mean for you?
Veterans
If you haven’t already started, you should begin asking your applicants to voluntarily self-identify whether they are a protected veteran or not (you do not ask them to ...
Treat each other with dignity and respect. Do not harass one another. They seem innocuous enough. However, the NLRB may deem these common rules unlawful, if they are implemented or more strictly enforced following protected activity, such as a strike or an election, or in the context of unfair labor practice charges filed against an employer. In Care One at Madison Avenue, 361 NLRB No. 159 (Dec. 16, 2014), the board held that an employer violated the law by posting a memorandum shortly after a union election, urging employees to treat each other with “dignity and respect” ...
On January 23, 2015, the U.S. Department of Labor (DOL) released its 2014 Union Membership Annual Report. Most notably was a decrease in union membership overall by .2%. The private sector union rates fell from 7.5% to 7.4% between 2013 and 2014 while the public sector rose from 38.7% to 39.2%.
The DOL report indicated that in 2014, 7.2 million employees in the public sector were members of a union compared to 7.4 million workers in the private sector. However, public sector workers have a much higher percentage of union membership – 35.7% for the public sector vs. 6.6% for the private ...
Last week the Indiana Court of Appeals reaffirmed its earlier decision holding an employer liable for its employee’s breach of its privacy policy. After the employee’s husband divulged he had fathered a child with another woman and contracted herpes, the employee searched her employer’s database and accessed the other woman’s prescription records. Of course the employer had a strict confidentiality policy in place. In fact the employee admitted she knew accessing patient information for personal reasons violated company policy. Why then is the company on the hook for ...
It’s January and you know what that means….it’s time to take down your Christmas lights and get your OSHA Form 300A ready for the February 1, 2015 deadline. Oh, the fun never ends! Every year we receive numerous inquiries regarding requirements under the OSHA Form 300A, and this year is no exception – except it is an exception. As of January 1, 2015, some of the industries that were exempt from this requirement have changed.
Prior to the change, the list of exempted industries was based on the Standard Industrial Classification (SIC) system. As of January 1, 2015, the list ...
California: Effective January 1, 2015, the required paid for rest periods are considered “hours worked” by the employee, and, consequently, are not subject to wage deductions by the employer. (California also has special requirements for making any deductions from their paychecks that you should be aware of before making any).
Colorado: Minimum wage rose to $8.23 per hour on January 1
Connecticut: As of the first of the year, CT’s minimum wage went to $9.15 per hour. Are you aware there is a paid sick leave law in CT? If not, be sure to contact your employment counsel or the ...
Effective January 1, 2015, employers that have fewer than 15 employees and either maintain a business facility within Chicago’s city limits or are subject to any of the license requirements of Title 4 of the Chicago Municipal Code (or both), are prohibited from pre-screening applicants for employment based on criminal history. Essentially, Chicago has taken the Illinois Job Opportunities for Qualified Applicants Act (otherwise known as the Illinois Ban-the-Box law), and applied it to the employers doing business in Chicago who are too small to be covered by the statewide ...
Terminating an employee for willful misconduct while on light duty related to a compensable workers’ compensation claim, has long resulted in the employee’s loss of total temporary disability benefits in most jurisdictions. However, an Illinois Supreme Court recently decided that termination of an employee based on questionable conduct (engaged in by other employees without discipline), does not provide a basis for termination of total temporary disability benefits.
Rather than focus on an evaluation of the issue of misconduct, the Court applied a test as to ...
The 7th Circuit’s recent decision in Taylor-Novotny v. Health Alliance Medical Plans, Inc., 772 F.3d 478 (7th Cir. 2014) provides a reminder to all employers that in order for an employee to establish an ADA claim he or she must show they are a “qualified individual with a disability.” That is, the employee must be able to perform the essential functions of the job with or without reasonable accommodation. In this case, the 7th Circuit reiterated that regular attendance is an essential function of most jobs and the fact that an employer allows flexibility through a ...
The IRS recently released its standard mileage reimbursement rates for the year 2015. As of January 1, 2015, those rates, which apply to the use of a car, van, pickup, or panel truck, are:
- 57.5 cents per mile for business miles driven;
- 23 cents per mile driven for medical or moving purposes; and
- 14 cents per mile driven in service of charitable organizations.
Employers should remember that the law does not require mileage reimbursement at these or any other rates. Instead, employers must reimburse employees for mileage only if a contract requires such reimbursements. Employers ...
The Illinois Secure Choice Savings Act (Secure Choice Act) was quietly signed into law by Illinois Governor Pat Quinn over the weekend. The controversial legislation will require most businesses in Illinois to adopt a retirement savings plan for their employees by June 1, 2017.
The Secure Choice Act creates a state-run retirement savings program in which eligible workers can contribute to a Roth IRA through automatic payroll deductions from their paychecks. Employers with 25 or more employees, who do not offer another type of retirement program, will be required to offer the ...
At the beginning of the year it is not uncommon for employees to jump ship. We often find our employer clients either dealing with employees who have left, or considering hiring employees who may be under non-compete agreements with their former employers.
Here are a few things to keep in mind:
If you are an employer who has an employee leave, make sure that his or her work station, laptop, or other electronic storage device is not “wiped” or put back in service until you are comfortable that the employee is not taking information or engaged in conduct that violates his or her ...
Throughout 2014, we have provided updates on a variety of new laws. Below are several Illinois laws that employers should be aware are effective January 1, 2015, as well as an update on Illinois’ medical marijuana law:
- Ban the Box – Effective January 1st, Illinois employers with 15 or more employees or employment agencies working for them are forbidden from inquiring about a job applicant’s criminal record/history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment.
- Pregnancy Discrimination and ...
Earlier this month the NLRB reversed establish precedent, ruling employers can no longer prohibit employees from using company email to engage in “protected concerted activity” or union organizing efforts during non-work time.
Section 7 of the National Labor Relations Act guarantees all employees, union and non-union employees alike, the right to organize and “engage in … concerted activities for … mutual aid or protection.” But recognizing employers’ property rights in company-managed email systems, the NLRB had long upheld employers’ right to ban ...
Numerous employers can verify first hand that OSHA is actively fulfilling the promise it made a few years ago, “to get back in the enforcement business.” In recent years, we have seen increased enforcement activity, including a significant increase in OSHA site inspections. There is no indication OSHA’s ramped up inspection activity will slow down any time soon. In fact, last month, the Department of Labor (DOL) announced its current rulemaking activity and OSHA topped the list with the most rulemaking activity within the DOL. This, coupled with OSHA’s new reporting ...
Back in July, we told you that President Obama signed Executive Order 13672, which directed the Department of Labor to expand the Equal Employment Opportunity requirements for certain federal contracts so as to prohibit discrimination by contractors based on sexual orientation or gender identity.
Taking the cue from that Executive Order, on December 3, 2014, the Department of Labor issued its Final Rule implementing the Executive Order. The Final Rule will take effect on April 8, 2015.
A central component of the Final Rule is its directive that covered contracts and ...
The NLRB has issued a controversial final rule amending its regulations on union representation elections. The final rule was adopted by a 3-2 vote and will take effect on April 14, 2015, unless enforcement is blocked by a court or Congress.
The quickie election rules (also referred to as “ambush” election rules) will drastically change the representation election process to limit the amount of time an employer has to respond to a petition and oppose unionization. The NLRB has been harshly criticized for passing these rules, which clearly favor big labor and take away the ...
On December 9, 2014, the U.S. Supreme Court handed down a victory for employers in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, 2014 WL 6885951 (U.S. Dec. 9, 2014) when the Court held that time spent by employees waiting for and undergoing security screenings before leaving the employer’s workplace was not compensable under the Fair Labor Standards Act (FLSA).
Plaintiffs sued Integrity Staffing Solutions alleging that it required hourly workers to undergo anti-theft screening, taking about 25 minutes per day, before leaving the warehouse and the end of each shift ...
If you weren’t playing Texas hold’em, would you ever raise the stakes? Or, as an employer would you ever promise to do more than the law requires to comply with anti-discrimination law? Costco Wholesale Warehouse provided language in its employee handbook that was found to provide more protection for employees than the law requires.
Peter Marini worked as a baker’s assistant at a Costco Warehouse in Connecticut. He suffers from Tourette’s syndrome, which causes involuntary twitches and other unusual physical manifestations and verbal utterings. Unfortunately, he was ...
On December 2, 2014, the Chicago City Council approved The Chicago Minimum Wage Ordinance (Chicago Municipal Code §1-24), increasing the minimum wage to $13.00 per hour. Here are nine points you need to know now:
- Covered employees are those who work for at least two hours in any two-week period within Chicago’s geographic boundaries, including driving through the city (e.g., that delivery driver that takes Route 94 from Evanston to Gary and gets stuck in rush hour traffic is covered!). Time commuting between home and work does not count.
- Employers with at least one ...
Every year at this time, employers ask us the same set of questions: Do we have to pay employees for holiday time off, or overtime if they work on a holiday? What about inclement weather closings?
Non-Exempt Employees
Non-exempt employees are those that are covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) and its state counterparts. These are the bulk of the workforce, and typically hourly workers. Non-exempt employees generally (exceptions follow) only need to be paid for hours they actually work – and not for holidays or ...
Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
The initiatives include:
– Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any ...
On November 6, Indiana’s right-to-work law cleared its most recent major hurdle. The Indiana Supreme Court upheld the law overturning a Lake County decision declaring the law unconstitutional. The Seventh Circuit upheld the law in September. Meanwhile the Michigan Supreme Court announced it will hear argument in January on whether its state’s right-to-work laws properly apply to state employees.
So, Indiana and Michigan and twenty-two other states (the entire south plus several states in the west) now have right-to-work laws on the books and several others have considered ...
I know, I know. You may have seen the headlines indicating that the Supreme Court is going to be reviewing another case challenging the Affordable Care Act and not even bothered to read the articles this time. After all, who hasn’t become a little tired of hearing about challenges and changes to the Affordable Care Act with constant updates occurring over the now almost five years since the act was signed into law by President Obama? Or perhaps it isn’t that you are tired of hearing about the ACA; you were just distracted when Kim Kardashian broke the internet. In any event, the ...
As most employers are aware, the EEOC has been on a multi-year campaign aimed at ferreting out alleged systemic discrimination by using an individual charge of discrimination as a springboard to investigating company-wide practices. The EEOC has been doing this by issuing broad requests for information, and then subpoenas, that seek company-wide information even though there is only an individual charge. Employers often balk at producing this information articulating a lack of relevance to the individual charge.
By and large, the federal courts have enforced the EEOC ...
Six months ago, the NLRB held (on remand from the Ninth Circuit) that an employer violated the National Labor Relations Act by firing an employee even though he called his supervisor a “[multiple expletives deleted]“ and even threatened that if he was fired, the boss would “regret it.” Plaza Auto Center, Inc., 360 NLRB No. 117 (2014). That decision left many employers exasperated, and still does. Recently however, the board issued a decision that confirms that even this pro-labor board recognizes that some employee conduct falls outside the protections of the National ...
On October 30, 2014 in the case of Overstreet v. Farm Fresh Co. Target One LLC, No. 2:13-cv-02358, the Arizona Federal District Court ordered attorney’s fees be paid to Farm Fresh Co. Target One LLC (Farm Fresh) by the National Labor Relations Board (NLRB) due to the NLRB’s demand that Farm Fresh reinstate four employees without following the federal and Arizona state laws governing the use of E-Verify.
In 2013, Farm Fresh was purchased through an asset purchase agreement by a new owner. The new owner (after receiving advice and guidance from the Dept. of Homeland Security ...
Employers who have been using E-Verify for more than 10 years must be aware that as of January 1, 2015, the U.S. Citizenship and Immigration Services (USCIS) will be deleting any transaction records in the E-Verify system that are more than 10 years old. As of January 1, 2015, employers will no longer have access in E-Verify to any case they created prior to December 31, 2004. In order to have a record of the cases that are more than 10 years old, employers must download the new Historic Records Report before the December 31, 2014 deadline. USCIS is encouraging all employers who were ...
On Tuesday November 4, 2014 all five states that had initiatives on the ballot – Illinois, Alaska, Arkansas, Nebraska, and South Dakota – passed measures to increase the minimum wage. As a reminder, the initiative in Illinois was nonbinding. Most of the increases will occur in a step manner, but all will need to be evaluated for the impact on our pay and businesses.
The state roundup of Minimum Wage Initiatives is as follows:
Illinois
The Illinois Minimum Wage Increase Question, which was on the November 4, 2014 ballot, passed. This initiative was an advisory question and is ...
Employers often do not question a service member’s request for time off due to being deployed or called up to active duty. However, when an employee comes home from active duty do you know your legal obligations? Better yet, do you know what to do if one of your employees is a service member who regularly requests time off for “training”?
Illinois employers are primarily affected by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Illinois National Guard Employment Rights Law. The problem is under both laws there is no formal process to check ...
We have all heard the mantra “the customer is always right,” but what is an employer to do when a customer’s request conflicts with an anti-discrimination law? As a Florida security firm learned last week, an employment decision that is based on disability violates the Americans with Disabilities Act (ADA) even if the decision is made in direct response to a specific customer complaint. Alberto Tarud-Saieh lost his right arm in a car accident. Later, he was hired by Florida Commercial Security Services as a security guard and assigned to provide security services for a ...
On November 4, 2014, five states — Illinois, Alaska, Arkansas, Nebraska, and South Dakota — as well as a handful of cities and counties, will all vote on various binding and non-binding initiatives that contemplate raising the minimum wage. These state and local initiatives arise after a failed attempt to bring the issue on the federal level earlier this year, and are important to watch in an ever borderless commerce system.
The state roundup of Minimum Wage Initiatives is as follows:
Illinois
The Illinois Minimum Wage Increase Question, which is on the November 4, 2014 ballot, is ...
On November 4, 2014, Massachusetts voters approved a ballot referendum requiring Massachusetts employers to provide paid sick leave. The new law will take effect on July 1, 2015. Massachusetts joins California and Connecticut as states requiring employers to provide paid sick leave, along with cities such as San Francisco, Newark and New York City.
Under the new Massachusetts law, employers with 11 or more employees must allow all employees (whether full or part time) to earn and use up to 40 hours of paid sick time per year. Employees accrue paid sick time at the rate of 1 hour for every ...
A few years ago, courts recognized that corporations have First Amendment rights to speech. E.g. Citizens United v. Federal Elections Commission (2010). Recently, a federal court deemed that a minority-owned contractor corporation – a legal entity, not a person – is African American for purposes of anti-discrimination in contracting law. Is recognizing a corporation’s “race” just a logical “next step” or does this “race” attribute open up unworkable and unforeseen consequences?
Federal laws prohibit discrimination in contracting based on race ...
The Seventh Circuit Appellate Court’s decision last week in Kauffman v. Petersen Health Care VII, LLC, makes clear that the time an employee spends on a given job duty is critically important when it comes to reasonable accommodation requests under the Americans with Disabilities Act (ADA). The Kauffman case also reinforces an important lesson on a reasonable accommodation pitfall that employers must absolutely avoid.
The employee, Debra Kauffman, was a hairdresser at a nursing home, and one of her duties in that role was to push wheelchair-bound residents to and from the ...
The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it has filed suit against a second employer alleging the employer’s wellness program is in violation of the Americans with Disabilities Act (ADA). The EEOC’s first lawsuit of this kind was filed a couple months ago alleging the employer’s wellness program was not voluntary and the employee was discharged for failing to participate in the program. The ADA concern is that wellness programs often require “medical examinations” and involve “disability-related ...
Beginning January 2015, employers will be subject to extensive ACA reporting requirements. Although submission of the data for 2015 will not take place until early 2016, employers and insurers need to start capturing the required data in January and should ensure that all the proper data can be captured and tracked prior to the beginning of the year.
The rules require extensive data reporting and are intended to help the IRS enforce various tax provisions of the ACA, including the employer and individual mandates. Proposed instructions for reporting and draft forms were ...
Recently, OSHA announced that it would be lowering the burden of proof for whistleblower claim investigations from “reasonable cause” to a mere “preponderance of the evidence.” As a result, employees need only show that, more likely than not, there was an adverse employment action as a result of an OSHA complaint, rather than showing that the adverse employment action was the direct result of the OSHA complaint.
At the same time, OSHA is seeking to hire 20% more full-time employees in its whistleblower programs and will be hiring in each region an Assistant Regional ...
A judge from the Northern District of Illinois recently ruled that an employer’s policy requiring employees to notify management before seeking medical treatment violates the Illinois Workers’ Compensation Act (IWCA). The employee filed suit alleging he was fired in retaliation for exercising his rights under the IWCA. The employer explained that the employee was terminated for failing to adhere to an important workplace policy that was in place for the safety of its employees.
The employer’s policy required employees to immediately report workplace injuries and ...
Arizona: In July, the Attorney General confirmed that the AZ smoking restrictions do not apply to e-cigs.
California: Employers, get ready to start having to offer paid sick leave beginning July 1, 2015 if you aren’t already! See our September 16, 2014 post for more details. Also, beginning January 1, 2015, unpaid interns and volunteers are getting the same nondiscrimination and harassment treatment as paid workers, including non-harassment training.
Connecticut: Starting October 1, 2014, workers may obtain certificates of rehabilitation related to their ...
We often hear the above statement when providing advice on workers’ compensation and employment law to clients and prospective clients. The focus then always involves exposure for workers’ compensation retaliatory discharge lawsuits. The litigation costs and risks of paying the former employee for wrongful discharge warrant obtaining legal advice. Plaintiff attorneys confirm to me that the burden of proving such a case is still a challenge to them.
Notably, an Illinois appellate court has just reduced the incentive to such litigation for plaintiffs in Dale v South ...
One week before an election to decertify Teamsters Local 734 as the bargaining representative of drivers at LaBriola Baking Co., the company held a mandatory meeting for its drivers to make a final push against continued union representation. At the meeting, the company’s Chief Operating Officer spoke about the upcoming election. The COO said in English, “If you choose union representation, we believe the union will push you toward a strike. Should this occur, we will exercise our legal right to hire replacement workers for the drivers who strike.” Roughly 80 percent of the ...
The ADA does not protect employees who are under the influence of illegal drugs. However, the ADA provides conflicting messages when drug tests include the testing for prescription drugs and how to respond if an employee in a safety sensitive position tests positive. This is further complicated by the blurring of what is an illegal drug in many states, including Illinois, which have legalized medical marijuana.
The ADA prohibits employers from inquiring whether an individual has a disability or requiring an individual to take a medical exam that would disclose a disability ...
Gov. Jerry Brown last week signed into law Assembly Bill 1522, the “Healthy Workplaces, Healthy Families Act of 2014.” Under this new law, effective July 1, 2015, California employers, with few exceptions, must provide at least 24 hours (3 working days) of paid sick leave per year to their employees.
Who Is Covered?
Essentially all employers and employees (including part-time and temporary employees) are covered by the law. Unlike other California leave laws (as well as other states and the FMLA), there is no minimum employee threshold; nor is there a minimum-hours-worked ...
On March 13, 2014, we reported that President Barack Obama signed a Presidential Memorandum directing his Secretary of Labor to update the regulations to expand the number of employees eligible for overtime under the Fair Labor Standards Act (FLSA). In May 2014, the Obama Administration released its Regulatory Agenda indicating that the U.S. Department of Labor (DOL) was scheduled to release its “white collar” overtime exemption regulations proposed rules in November 2014. We anticipate that the new proposed regulations will be significantly narrower than the ...
In a world where cyber space rules, employers need to ensure that their customer, business and client information is protected. While our cyber tech attorneys and IT professionals handle the tech-y details of the network configuration, on the labor & employment front, we also need to ensure that we have policies and procedures in place to govern our employees’ behavior, reduce liability, and increase accountability.
In today’s universe, work is rarely conducted 100% of the time in the office behind a desk. Our employees and our information are on the go: cell phones ...
In July, we told you about “Ban the Box” coming to Illinois. Effective January 1, 2015, this legislation forbids employers and employment agencies from inquiring about a job applicant’s criminal record or criminal history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment. Yesterday, WTTW Chicago Tonight covered this issue and interviewed our group chair and blog contributor Jeffrey Risch on the issue. Check out the video here. The story runs around six and a half minutes long, you can see Jeff ...
Last week a federal appeals court ruled FedEx drivers are not independent contractors, but rather employees. The decision prompted many to ask, FedEx drivers are classified as independent contractors? In fact they are. According to the decision, Alexander v. FedEx, drivers provide their own vehicles (which must meet detailed specifications), pay their own operating expenses, determine their own routes, (provided they deliver the assigned packages on time) and sign an operating agreement accepting the independent contractor arrangement.
The FedEx case arose because a ...
If not, it should be. An open door policy, (essentially a policy through which the employer makes clear to employees that they can and should bring concerns and complaints to human resources or other appropriate managers) may be the difference between substantial legal liability and a relatively prompt resolution of an employee’s lawsuit. Certain laws, including federal wage and hour and anti-harassment statutes, provide employers at least a partial defense to claims made by employees who refuse to use internal complaint procedures before filing a lawsuit. Even in the ...
In Fifth Third Bancorp v. Dudenhoeffer, No. 12-751 (June 25, 2014), the Supreme Court overhauled the legal landscape of ERISA “stock drop” litigation. The case was brought by 401(k) plan participants after Fifth Third’s employer matching contributions, made in company stock to an ESOP component of the plan, dropped 74% over a two-year period. Plaintiffs argued that plan fiduciaries breached their duties under ERISA by investing in and maintaining investments in Fifth Third stock in light of the risks associated with the employer’s subprime lending ...
In May 2014, the Department of Homeland Security announced a proposed rule to allow for work authorization for certain spouses of H-1B visa holders. The work permit is called an Employment Authorization Document or EAD. No time frame has yet been finalized for this benefit.
Employment authorization could be extended to H-4 nonimmigrant spouses in the following situations:
(1) The principal H-1B spouse is the beneficiary of an approved 1-140 Immigrant Petition; or
(2) the H-1B nonimmigrant’s period of stay is authorized under sections 106(a) and/or (b) of the American ...
In a recent memorandum, the Office of the General Counsel for the National Labor Relations Board (“NLRB”), informed all regional directors that the NLRB had entered into a program with the Occupational Safety and Health Administration (“OSHA”) and the Wage and Hour Division of the U.S. Department of Labor (“DOL”) whereby NLRB investigators, in certain circumstances, will actively encourage parties that file an unfair labor practice (“ULP”) charge to also file charges or complaints with OSHA and the DOL for potential violations of the Occupational Safety and ...
Employers may be appalled to learn that their standard practice of simply mailing (and emailing) notices and other important correspondence to employees may be insufficient to satisfy their obligations under various employment laws.
Recently, an appellate court held that a former employee’s claim that she never received individual notice defeated the “Mailbox Rule” presumption, and therefore precluded the employer’s ability to obtain summary judgment in a Family and Medical Leave Act (FMLA) matter. Lupyan v. Corinthian Colleges Inc., No. 13-1843 (3rd Cir ...
Franchisors across the U.S. may be surprised to learn that the general counsel for the National Labor Relations Board has taken the position that they are likely joint employers with their franchisees under the National Labor Relations Act (NLRA). The announcement came in the context of finding joint liability for alleged unfair labor practices, but the true impact and purpose is to open the door to unionization of all employees of local franchises as a single bargaining unit of the corporate franchisor.
Since 2012, the NLRB has received 181 complaints from employees of ...
Recently, the U.S. Supreme Court granted certiorari to review a Fourth Circuit opinion holding that an employer did not violate the Pregnancy Discrimination Act (PDA) when it did not offer light duty to a pregnant employee, even though the employer had an established light duty program for certain categories of employees, including those injured on the job. Young v. United Parcel Service, Inc. The following week, the EEOC released enforcement guidance that takes an opposite position to that reached in Young. The guidance was not offered for public comment prior to being ...
The labor world is abuzz about “micro-units” as a result of two recent National Labor Relations Board decisions regarding Union petitions to represent such “micro-units” of employees: Bergdorf Goodman, 361 NLRB No. 11 (July 28, 2014) and Macy’s, Inc., 361 NLRB No. 4 (July 22, 2014).
What is a micro-unit and why does it matter?
A “micro-unit” is a small and discrete subset of employees at a particular worksite, which a union seeks to represent. It is the opposite of a “wall-to-wall unit” that would encompass the majority of an employer’s non-supervisory ...
In contrast to the Supreme Court’s ruling in the recent Hobby Lobby case, which directly affected only a handful of employers, two cases with the potential to derail the Affordable Care Act (“ACA”) were decided last Tuesday – with conflicting results. Less than two hours after a panel of the D.C. Circuit Court of Appeals ruled in Halbig v. Burwell that the insurance subsidies that help millions of Americans pay for health insurance are illegal in 36 states, the 4th Circuit Court of Appeals issued a contradictory ruling in King v. Burwell, affirming the exact ...
“Equality in the workplace is not only the right thing to do, it turns out to be good business.” – U.S. President Barack Obama, July 21, 2014
On July 21, 2014, President Obama – in allegiance to his commitment to the LGBT community – signed an Executive Order that amends Executive Order 11246 giving workplace protections to those applicants and employees seeking work from federal contractors and subcontractors by specifically prohibiting contractor discrimination based upon not only a person’s sexual orientation, but now their gender identity too. Unlike the Hobby ...
Although the Illinois Medical Marijuana law went into effect on January 1, 2014, marijuana (medical and recreational) is still currently illegal to be possessed or used in Illinois. On July 16, 2014, a significant step was taken towards changing that when the Joint Committee on Administrative Rules (JCAR) approved the administrative rules for the Illinois Medical Marijuana law.
The administrative rules address the licensing of registered users, dispensaries and cultivators, as well as regulations on the operation and management of dispensaries and cultivators. However, the ...
On July 3, 2014, the Illinois Supreme Court issued its decision in Kanerva v. Weems, 2014 IL 115811, reversing the circuit court’s dismissal of four lawsuits, Bauer v. Weems, No. 12–L–35 (Cir. Ct. Randolph Co.); Kanerva v. Weems, No. 12–L–582 (Cir. Ct. Sangamon Co.); Maag v. Quinn, No. 12–L–162 (Cir. Ct. Sangamon Co.); and McDonal v. Quinn, No. 12–L–987 (Cir. Ct. Madison Co.). One of the claims raised in each of the four cases was the constitutional validity of amendments to the Illinois State Employees Group Insurance Act instituted by the general ...
The Illinois “Job Opportunities for Qualified Applicants Act” has been approved by the Illinois legislature. It was sent to Governor Quinn on June 27, 2014, and he is expected to sign it into law.
Once signed (or if the Governor doesn’t veto it by August 27, 2014), the Act would go into effect January 1, 2015. Illinois would become the fifth state on a growing list of states (currently Massachusetts, Rhode Island, Minnesota and Hawaii) to enact “ban the box” legislation that applies to public and private employers. Another five states (California, Colorado ...
In March 2003, former Illinois Governor Rod Blagojevich issued an executive order calling for state recognition of a union as the exclusive representative of home health care personal assistants employed in the “rehabilitation program.” The executive order was subsequently codified by the Illinois legislature, which declared personal assistants to be “public employees” of the state of Illinois “solely for the purposes of coverage under the Illinois Public Labor Relations Act.” Subsequently, the personal assistants selected SEIU as their exclusive ...
Maybe. Organizations representing a variety of business and labor interests accepted the NLRB’s invitation to weigh in on whether the board should reconsider its standard for determining when organizations are deemed “joint employers.” Teamsters Local 350 requested the NLRB review a decision which found Browning-Ferris and its subcontractor, Leadpoint (which provides employees to the Browning-Ferris facility), were not joint employers because Browning-Ferris did not share immediate and direct control over the terms and conditions of Leadpoint’s employees ...
In what was disappointing news to employers in Illinois, Wisconsin, and Indiana, the Seventh Circuit Court of Appeals ruled in December 2013 that the Equal Employment Opportunity Commission’s (“EEOC”) failure to engage in good-faith conciliation efforts with an employer prior to filing a lawsuit alleging the employer engaged in unlawful discrimination or harassment is not a viable affirmative defense requiring the dismissal of such a lawsuit.
According to the employer’s petition to the Supreme Court, the Mach Mining case began with a single EEOC charge from one ...
The U.S. Supreme Court ruled on Thursday that President Obama’s three appointments to the NLRB in January 2012, made without the “advice and consent” (i.e., approval) of the Senate, were invalid appointments. The case is NLRB v. Noel Canning, and affirms a prior decision of the court of appeals for the D.C. circuit.
As a result, hundreds of cases decided by the NLRB from January 2012 through July 2013 have been rendered void – as if they never happened – because the NLRB did not have a quorum and could not lawfully act. The NLRB may have to reconsider those cases anew. That ...
On Tuesday, the 7th Circuit Court of Appeals vacated an FMLA decision that was in favor of the employer and instructed the lower court to issue a ruling in favor of the employee. The case involved the application of FMLA to an employee caring for an adult child and the issue regarding information the employee must provide about the duration of the leave and return to work status. The court’s opinion is instructive on both issues.
Suzan Gienapp worked at a residential nursing care facility. She requested time off to care for her adult daughter who had to undergo treatment for ...
In a recent workers’ compensation case, the personal and neutral risk defenses have been seriously eroded via an appellate court created exception based on the number of times an employee is exposed to a neutral risk (no greater risk than the general public/no defect) with employer knowledge of the personal condition.
In the case of Village of Villa Park, a community service officer suffered from a right knee condition related to a prior non-work injury (fall on ice at his vacation home). Due to the injury suffered in that accident, the petitioner was scheduled for ...
HB 8, pushed through the Illinois Legislature and ready to be signed into law by Governor Quinn, amends the Illinois Human Rights Act to add to the list of employment discrimination, an employer’s failure to provide a reasonable accommodation to an employee based on conditions related to pregnancy or childbirth. The new amendment will create a legal quagmire for Illinois employers. Employers currently must balance the rights of employees under the current Illinois Human Rights Act (IHRA), the federal Americans with Disabilities Act (ADA), the federal Family ...
Two armed would-be robbers burst into your workplace demanding money/drugs/computers/merchandise. One of your employees pulls a gun from his pocket, fires at the thugs, and they run away. Do you give the employee a bonus …… or do you terminate him? The sixth circuit recently said it’s ok for employers to enforce policies that prohibit possession of weapons in the workplace and require non-escalation in violent situations.
In Hoven v. Walgreens (Case No. 13-1011) a Michigan pharmacist obtained his concealed carry permit and began bringing his handgun to work after an ...
SB 3287 was signed by Governor Quinn yesterday, June 5, 2014. This legislation effectively overturns the prior (2012) Appellate Court decision in Mockbee and Mockbee v. Humphrey Manlift Company, Inc. and R. Harris Electric, Inc., 973 N.E.2d 376, 362 Ill.Dec. 276. It eliminates the workers’ compensation exclusive remedy/immunity enjoyed by service companies that provide safety consulting services unless those companies are wholly-owned by the employer, insurance broker or the insurer. Erosion of the exclusive remedy provision always creates more ...
Florida: After much debate in the lower courts, it is settled – employers may not discriminate against pregnant workers in FLA (you couldn’t before under Federal law, but FLA confirms the same).
Iowa: If you have to notify at least 500 state residents including your employees and applicants of any potential personal information security breach, you must also notify the Iowa Attorney General’s Office of the same.
Maryland: Do you have between 15 – 49 employees? If so, beginning October 1, 2014, you must provide similar FMLA leave of up to 6 unpaid weeks for parental ...
On July 29, 2013, former Apple employees filed a class action lawsuit claiming that Apple required them to stand in line for up to 30 minutes per workday for a manager to search their bags when they left the premises for lunch or at the end of the workday. The lawsuit allegedly deprived the workers of approximately $1,500 per year in unpaid wages. The FLSA class action case was filed in San Francisco federal district court.
On May 29, 2014, the United States district court for the northern district of California denied Apple’s motion for summary judgment, but stayed all proceedings ...
Earlier this month, the Department of Labor (DOL) issued proposed regulations revising the COBRA notice requirements to align with the Affordable Care Act (ACA) and make clear to workers that if they are eligible for COBRA, they have the option to choose to purchase coverage on the exchange instead. The DOL also issued two new model COBRA notices to help employers comply with the revised notice requirements.
The updated Model General COBRA Notice is similar to the previous model notice, but includes a new page of instructions for administrators, as well as additional information ...
If you are an employer, the latest rash of formal agreements between the National Labor Relations Board (NLRB) and various government agencies (local, state and national) warrants some real attention.
Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), announced that it will start advising employees who fail to timely file whistleblower retaliation complaints under OSHA that they may still have time to seek relief under the National Labor Relations Act (NLRA). While Section 11(c) of the OSH Act only allows 30 days for an employee to ...
The Missouri Court of Appeals for the Eastern District recently determined that an employee who refuses to sign a proffered non-compete agreement, which was required as a condition of employment, and voluntarily leaves employment was entitled to unemployment benefits. The court determined that “good cause” existed and warranted entitlement.
David Darr began working for Roberts Marketing Group in October of 2012, selling final expense life insurance. Shortly thereafter, on January 24, 2013, the employer announced that it was implementing a new non-compete ...
The internet can be an excellent resource, but it can also be a very dangerous resource. Recently, the EEOC issued an advisory letter addressing a sample ADA policy and sample forms for responding to an accommodation request that were posted on a state agency’s website. Although the sample policy and forms were posted by a state agency, the EEOC advisory letter identified several parts of the sample policy and forms that would be considered as violating the ADA.
The EEOC advisory letter specifically states that setting absolutes in how circumstances are addressed in an ...
A federal court in Indiana ruled recently that a GE manufacturing employee could present her ADA claims to a jury despite concern that accommodating her disability posed a safety risk. Cindy English’s permanent restrictions prevent her from reaching above her head. She was awarded a repair operator position based on seniority but GE’s medical staff concluded her restrictions prevented her from performing the job.
English suggested she could perform the job if she used a stool. GE considered allowing English to demonstrate whether she could perform the job using the ...
On April 29, 2014, a three-member panel of the NLRB certified a union as an exclusive bargaining representative despite election-related threats being made by pro-union employees. The case is ManorCare of Kingston, PA, LLC & Laborers Int’l Union of N. Amer. Local 1310, NLRB No. 04-RC-109516 (Apr. 29, 2014). Specifically, at least two pro-union employees threatened that they would “start punching people in the face,” damage people’s cars, and otherwise physically harm coworkers who voted against the union. These threats were then repeated to other employees.
On May 1, 2014, the National Labor Relations Board (“board”) issued a news release regarding the board’s decision in Purple Communications, Inc., to invite briefs on the issue of overruling existing board precedent on employees’ use of company e-mail systems.
Current precedent allows employers to restrict employee use of an employer’s e-mail system to business purposes only. One consequence of a properly enforced business-purposes-only rule is that employees have no right to use their employer’s e-mail system for union organizing efforts or other ...
On April 28, 2014, the Senate voted to confirm Dr. David Weil as administrator of the U.S. Department of Labor’s Wage and Hour Division (WHD). It has been over a decade since the Senate has confirmed a WHD administrator. President Obama’s nomination of Dr. Weil has been controversial and his confirmation was approved on narrow margins with a vote of 51-42 in favor of the nomination.
Dr. Weil’s nomination drew scrutiny because of a report he submitted to the Department of Labor in May 2010 entitled Improving Workplace Conditions through Strategic Enforcement: Report to the Wage ...
The IRS released Notice 2014-19 earlier this month, answering many of the open questions on the application of the Supreme Court’s decision in U.S. v. Windsor to qualified retirement plans. Although the IRS provided initial guidance on the impact on employee benefit plans shortly after the Court found the Defense of Marriage Act’s (DOMA) ban on same-sex marriage unconstitutional, many details specific to retirement plans were still outstanding.
Effective Date and Retroactivity
The recent release reaffirms that qualified retirement plans are required to recognize ...
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2014 that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2015, which begins on October 1, 2014. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advance degree exemption. Approximately 172,500 H-1B petitions were received by USCIS during the filing period, which began on April 1, 2014. On April 10, 2014, USCIS completed a computer generated random selection process, or lottery, to select enough petitions to meet the 65,000 ...
Yesterday the Supreme Court upheld Michigan’s ban on affirmative action programs overturning a 6th Circuit Court of Appeals decision which had ruled the ban an unconstitutional violation of the U.S. Constitution’s Equal Protection Clause.
Michigan’s ban on affirmative action was enacted as Article I, Section 26 of its State Constitution and, in relevant part, prohibits governmental entities, including public colleges and universities, from granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin. Michigan voters passed ...
On April 9, 2014, the Illinois Senate unanimously passed amendments to the Illinois Violence Prevention Act (“VPA”), sending the bill to the House for consideration once the General Assembly reconvenes on April 29, 2014. The VPA, effective only since January 1, 2014, is meant to enable employers to protect its workforce, customers, guests and property by limiting access by potentially violent individuals (“PVI”). Under the Senate-approved amendments, an employer would obtain, through any state circuit court, a workplace restraining order to prohibit further ...
On Tuesday, April 8, 2014, Scott Walker, Governor of Wisconsin, signed into law the “Wisconsin Social Media Protection Act.” The act went into effect on April 10, 2014, and places restrictions on the types of information that Wisconsin employers can and cannot seek from employees and/or job applicants regarding their personal social media accounts.
The act prohibits employers from requesting an employee or applicant to grant access to their personal internet account (i.e., internet based accounts created and used by an individual exclusively for personal ...
It’s that time of year again when we’re all settling up with the IRS and hoping and searching for as many deductions as we can. Many employers would like a way to offer employees nontaxable dollars with which they could purchase individual coverage through the marketplace or in the individual private market, without the employer needing to establish its own group health plan (or allowing the employer to terminate the existing group health plan they might be providing).
However, the following prohibitions took effect January 1, 2014:
- Stand-alone HRAs can no longer be ...
The United States District Court for the Western District of New York ruled in favor of Sterling Jewelers, Inc., and dismissed, with prejudice, the EEOC’s claim against the company alleging nationwide pattern and practice discrimination. The court found that the EEOC did not present sufficient evidence to demonstrate that the agency undertook a nationwide investigation of the pattern and practice claims. As such, the court found that the EEOC was barred from proceeding on those claims and granted summary judgment to Sterling Jewelers.
Throughout the last few years, there ...
Federal: The OFCCP has published the data for federal contractors and subcontractors who must now comply with having protected veteran benchmarks for their affirmative action plans and hiring goals. Currently, that nationwide threshold is 7.2% unless the contractor wants to create its own individualized benchmarks, to which that state specific veteran data is supplied.
That is not all. Contractors are now required to also request individuals to self-identify if they are an individual with a disability pre-offer stage. Again, the OFCCP has given us guidance on how to do ...
This should be an easy one to cross off your to-do list. Dust off the confidentiality and non-disclosure language that you require your non-supervisory employees to adhere to – whether through a specific agreement, employee handbook or general company policy. Last week, the U.S. Court of Appeals for the Fifth Circuit served up a reminder that what used to be considered standard language regarding an employer’s expectation of confidentiality, now opens the door to potential liability under federal labor law, for both union and non-union employers.
In Flex Frac ...
On March 25, 2014, the Supreme Court in United States v. Quality Stores, U.S., No. 12-1408, 2014 WL 11168968, 3/25/14) overturned the Sixth Circuit and unanimously held severance payments made to terminated workers were subject to payroll taxes including the Federal Insurance Contributions because the payments constituted “wages” and were in connection to services employees provided to the employer.
The defendant, Quality Stores, had made severance payments to employees who were voluntarily terminated prior to a Chapter 11 bankruptcy. Quality Stores paid and ...
On March 6, the EEOC issued guidance on Title VII’s application to the issue of religious garb and grooming in the workplace. The guidance does not create any new obligations for employers. Rather, it illustrates the complex nature of accommodating religious beliefs and practices, and provides insight into how the EEOC views employers’ legal responsibilities with respect to religious garb and grooming under Title VII. It also indicates this will be an area of increased EEOC enforcement in coming years.
Title VII protects all aspects of religious observance, practice, and ...
Flexible work weeks have traditionally been viewed as a perk that large employers were able to give their employees because of their size and depth. This was a privilege that was generally earned on a case by case basis after an examination of the position and the employee. This is not necessarily the case anymore in San Francisco.
The San Francisco Board of Supervisors amended its city’s Family Friendly Workplace Ordinance (FFWO) on January 7, 2014 to clarify that the ordinance applies to all employers with at least 20 employees, regardless of the employees’ location. The ...
Earlier today, President Barack Obama signed a Presidential Memorandum directing his Secretary of Labor to update the regulations to expand the number of employees eligible for overtime under the Fair Labor Standards Act (FLSA). The president was expected to take more specific action based on statements made by White House personnel earlier this week, but he left virtually all of the details to the United States Department of Labor.
The president set the stage for the Department of Labor to narrow the exceptions to the FLSA by discussing the failure of the executive or ...
On March 10, 2014, the Treasury Department and the IRS published the final rules on the Affordable Care Act (ACA) information-reporting provisions for employers and insurers set to take effect in 2015. The final regulations on Sections 6055 and 6056 of the Internal Revenue Code are being touted by the agencies as simplifying the original reporting requirements, which had been criticized by many employer groups as unnecessarily onerous.
Some progress has been made toward simplification – moving to a single combined form capturing data required by both Sections 6055 ...
On March 3, 2014, the U.S. Supreme Court announced it will review Busk v. Integrity Staffing Solutions, Inc., in which the Ninth Circuit held that time spent in (and waiting for) post-shift security screenings is compensable under the federal Fair Labor Standards Act (“FLSA”). The employees in Busk, who worked in a warehouse filling Amazon.com orders, were screened only at the end of their workdays for the purpose of preventing the theft of Amazon merchandise. Accounting for time spent waiting to be screened, the screening process took approximately 25 minutes for ...
The U.S. Supreme Court ruled that the whistleblower protections of the Sarbanes Oxley Act (SOX) reach beyond publicly traded companies. In a split decision, the Court held that employees of privately held companies that contract or subcontract with a publicly traded company covered by SOX are also protected by SOX’s whistleblower provision.
The case involved two employees of a private company that contracted to advise and manage mutual funds for a publicly traded company subject to SOX. Both employees alleged they blew the whistle on putative fraud relating to the mutual ...
The number of DOL benefit plan audits held steady in 2013 with the Employee Benefit Security Administration (EBSA) recently announcing that 3,677 civil investigations were closed in 2013, resulting in $1.7B in corrections, restored plan assets and fines. With that in mind, it’s a good time for plan sponsors and administrators to turn their attention to some basic housekeeping.
If the thought of a DOL plan audit makes you nervous, there’s good reason! DOL investigations find a failure in over 70 percent of plan audits. Failures typically result from defects in plan ...
The Illinois State Police announced today that they have approved the first 5,000 applications for concealed carry licenses under Illinois law and will be mailing out concealed carry licenses today.
The approval of these licenses shows that the Illinois State Police have decided not to use the entire 90 day period that the law provides for them to review applications, which would have resulted in the first concealed carry licenses being issued in April 2014.
Businesses and employers should anticipate that customers, clients and employees could have a concealed carry license as ...
Recently, the Federal Seventh Circuit Court of Appeals (Illinois, Wisconsin, and Indiana) affirmed summary judgment for the employer in a Workers’ Compensation retaliation claim. Phillips v. Continental Tire The Americas, LLC, — F.3d —, 2014 WL 572339 (Feb. 14, 2014). Employer Continental Tires (“Continental”) had a written substance abuse policy which required drug testing for several enumerated reasons, including initiation of a workers’ compensation claim. The policy further provided that an employee’s refusal to be tested was grounds for immediate ...
Would you want to know if you were about to offer a job to a convicted felon? Most employers would say “of course,” but both seeking and acting on that information could land you in legal trouble. Before obtaining criminal background information on all potential new hires, you should know that the U.S. Consumer Financial Protection Bureau, the EEOC, and your state government may have something to say about that practice.
As a general rule, it is legal to inquire into the criminal history of employees and potential employees; however, concerns about fraud and discrimination are ...
On Tuesday, February 11, 2014, Judge Sara L. Ellis of the United States District Court for the Northern District of Illinois ruled that the EEOC could continue to pursue its ADA claims and challenge the United Parcel Service, Inc.’s (“UPS”) return-to-work rule of discharging employees who cannot return to work after twelve (12) months of continuous leave (EEOC v. UPS, Inc., No. 09-CV-05291, N.D. Ill. 2/11/14).
In this case, UPS had maintained a leave of absence policy, which provided in part that employees will be “administratively separated from employment” after ...
I’m going to come right out and say it: I hate Valentine’s Day. Polls taken around this time of year prove that I’m not alone. If you’re unhappily single, it’s a month-long in-your-face reminder of the fact that you’re single. If you’re in a relationship, there is tremendous pressure to make a grand romantic gesture that’s not too grand or too romantic and proportionately matches your partner’s feeling. The all-time absolute worst possible way to try to celebrate Valentine’s Day, however, is at the office. At best, it creates a distraction that eats into ...
The Affordable Care Act (“ACA”) originally scheduled the employer mandates to take effect in 2014. Then, on July 2, 2013, the White House announced that it would delay enforcement of the employer mandate provisions from 2014 to 2015. Now – in line with the over-arching theme of the ACA which seems to be last minute postponement of regulations frustrating those proactively trying to ensure compliance — the IRS has now released new guidance further delaying the employer mandate until 2016 for those employers with less than 100 full-time employees.
Employers ...
A few weeks ago, the Seventh Circuit federal appellate court (Illinois, Indiana and Wisconsin) held that an employee’s absence from work was protected by the Family Medical Leave Act – even though she was on vacation with her terminally ill mother in Las Vegas. Ballard v. Chicago Park District, Case No. 13-1445 (7th Cir. Jan. 28, 2014).
There was no question that Ballard provided daily care to her mother. However, when she requested FMLA leave to travel with her mother to Las Vegas, Ballard’s employer denied the request. Ultimately, the employer terminated her for the ...
Federal: Federal Contractors be on alert! In an attempt to get Congressional support to raise the federal minimum wage for all workers, President Obama announced that he was going to be issuing an Executive Order that will require federal contract employers to pay workers a minimum wage of $10.10 per hour on any new federal contracts. This could happen as soon as the next week or so.
The NLRB poster rule has gone by the wayside. The NLRB gave up its fight to require all private employers to post the union-friendly poster by allowing the Supreme Court’s review deadline to pass ...
Earlier today the National Labor Relations Board announced proposed rule changes that will drastically speed the union election process, limit issues employers can raise in the pre-election process, and limit employers’ appeal rights. The proposed amendments are nothing new. Substantively identical changes – dubbed the “Quickie” or “Ambush” Election Rule — went into effect April 30, 2012 but was quickly invalidated when the D.C. Circuit ruled the Board did not have a quorum when it passed the rule changes. The amendments proposed today are open for public ...
More employers are encountering issues with transgender employees and job applicants. The term “transgender” has various meanings, ranging from people who have undergone a sex change operation, are considering or preparing for such an operation, or are merely dressed like the opposite sex.
There are indications that “gender identity” could become a category of work place discrimination. The U.S. Senate recently passed a bill providing protection against work place discrimination on the basis of sexual orientation or gender identity, although the bill is considered ...
Making sure your company is complying with the ADA just got a little bit more difficult (as if it wasn’t already difficult enough).
The Appellate Court for the Seventh Circuit recently issued two rulings that have added to the complexity of the ADA. In Spurling v. C & M Fine Pack, Inc., 13-1708, 2014 WL 107968 (7th Cir. Jan. 13, 2014), the plaintiff had been fired after repeatedly falling asleep while on the job. After the district court granted summary judgment, the appeals court reversed finding that the company had notice that the employee was suffering from a medical condition ...
On January 27, 2014, in Sandifer v. U.S. Steel Corp., 12-417, 2014 WL 273241 (U.S. Jan. 27, 2014), the U.S. Supreme Court upheld the Seventh Circuit decision that time spent donning and doffing protective gear was time spent “changing clothes” under Section 203(o) of the FLSA allowing parties to a collective bargaining agreement the ability to bargain over compensability of such time at the beginning and end of the work day.
Clifton Sandifer filed a collective action under the FLSA seeking compensation for the time he and others spent donning and doffing work gear items ...
Filings, filings and more filings…that is the theme of 2014. It seems like every month brings another looming deadline – taxes, 5500 etc. Well, let February be no exception. From February 1, 2014 through April 30, 2014, employers who are required to keep OSHA Form 300, the Injury and Illness Log, must post the Form 300A, the Summary of Work-Related Injuries and Illnesses, in a conspicuous workplace common area.
If you are reading this and saying ‘huh??’ or ‘uh oh!’, you are not alone. But never fear! Amundsen Davis will get you through yet another governmental regulatory ...
Another Attempt to Help Labor Unions
Last month, we reported the recent amendment to the Illinois Prevailing Wage Act (IPWA) requiring fringe benefits to now be annualized for purpose of taking a credit for fringe benefit payments. The Illinois Department of Labor (IDOL) recently updated its Frequently Asked Questions (FAQs) to explain how the IDOL interprets the new annualization requirement. In the process of updating its guidance, the IDOL has expanded on how fringe benefits might affect the prevailing base hourly rate that a contractor must pay. ...
Recent guidance from the U.S. Department of Labor (DOL) reiterates that the DOL will allow telemedicine visits—generally speaking, health care appointments held via video conference—to qualify as in-person visits to a health care provider under certain circumstances.
As our readers know, the FMLA provides certain employees up to 12 workweeks of leave for, among other things, a “serious health condition.” An employee can show the existence of a serious health condition by several methods that include establishing that the employee has an illness or injury that involves ...
The Americans with Disabilities Act (ADA, ADAAA) prohibits, among other things, an employer from discriminating against an employee with a disability on the basis of that disability. The Federal District Court for the Northern District of Illinois recently interpreted the definition of disability to include obesity.
While the EEOC’s ADA interpretive guidelines provide that obesity is a disability in “rare circumstances” only, the court in this case mused that an administrative assistant who claimed to have had weight-related difficulty walking across a parking lot ...
The U.S. Supreme Court continues to rule in favor of the ERISA plan document.
A disability plan’s three-year limitations period doesn’t violate the Employee Retirement Income Security Act (ERISA), a unanimous Court ruled on December 16, 2013 in Heimeshoff v. Hartford Life & Accident Ins. Co. “[A] participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues,” held the Court. ERISA itself does not specify a statute of limitations for claims brought under covered plans.
In Heimeshoff, the ...
Back in October, we discussed Unite Here Local 355 v. Mulhall, a case pending at that time in the U.S. Supreme Court. The issue in Mulhall was whether a union neutrality agreement could be a “thing of value” paid, lent, or delivered to a union in violation of Section 302 of the Labor-Management Relations Act (“LMRA”).
The misnomer is that neutrality agreements have little to do with neutrality. Instead, they are a way for a particular union to virtually guarantee that it will acquire control over employees who may have no interest at all in being unionized.
In December, the ...
The EEOC’s administrative division raked in a record $372.1 million in voluntary payments from private sector employers in fiscal year 2013 (9/2012-9/2013) according to its Performance Accountability Report issued December 16. This figure, the highest in the Commission’s history, surpassed FY 2012 by nearly $7 million and comes despite sequestration which forced budget cuts, a hiring freeze and mandatory furloughs on the agency. The Commission reported resolving nearly 14,000 fewer charges in FY 2013 (97,252) than it did in FY 2012, indicating an increase in the ...
On December 19, 2013, the Illinois Supreme Court issued its much anticipated decision in Venture-Newberg-Perini, Stone & Webster v. Ill. Workers’ Compensation Comm’n., No. 115728 (Ill. 2013). Claimant Ronald Daugherty accepted temporary employment 200 miles from his home at Respondent Venture’s Cordova plant. Daugherty and coworker Todd McGill chose to stay in a hotel 30 miles from the plant rather than make the 400 mile/day roundtrip commute after their 12-hour shifts. On what was to be their second day of work, McGill, driving his own truck, skidded on ice while ...
Welcome to the Labor and Employment Law Update where attorneys from Amundsen Davis blog about management side labor and employment issues.
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