Labor & Employment Law Update

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 20^th. 

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.