Labor & Employment Law Update

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.

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.

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.

On August 23^rd 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 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.

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 ...

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 1^st  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 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 healthcare 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 ...

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 ...

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 ...

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 ...

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:

1. Can you require employees to wear a face mask? 
2. 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 ...

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 ...

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:

• CDC Interim Guidance for Businesses and Employers – Plan, Prepare and Respond to Coronavirus Disease ...

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 ...

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 ...

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 ...

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 ...

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 ...

t appears Illinois will become the 11^th 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 ...

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 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 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 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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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:

1. 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.
2. Covered Employers include individuals who employ at least one Covered Employee AND (1) maintain a business facility within the county’s ...

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 ...

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 ...

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 22^nd, 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; ...

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 ...

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 ...

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 ...

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:

1. 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.

1. Control Scheduling – FMLA regulations require that absences for ...

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 ...

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 ...

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 ...

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 1^st:

1. Post Chicago’s Minimum Wage Poster by ...

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 ...

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 ...

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 ...

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 1^st, 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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...