Labor & Employment Law Update

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.