Labor & Employment Law Update

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.