Labor & Employment Law Update

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 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.

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 27^th, 2022, VDA OC, LLC (formerly Advantage On Call or AOC), a healthcare 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 4^th 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 7^th 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.

1. 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:

1. 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:

• Victim’s Economic Security and Safety Act

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 10^th 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 healthcare 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 6^th Circuit Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) previously ordered by the 5^th 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 6^th 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 SmithAmundsen 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 healthcare 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 healthcare ...

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 ...

n 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 5^th 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 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 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:

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 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 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.

SmithAmundsen LLC’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. SmithAmundsen 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 healthcare industry, but updated guidance has been issued for all other industries, as outlined below:
 
Non-Healthcare Industries: For non-healthcare 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 ...

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 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 ...

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 3^rd 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 7^th 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 31^st 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: 

1. 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:

1. 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 ...

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 3^rd 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 3^rd). 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 non-profit 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 15^th, 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:

1. 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:

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 ...

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 10^th 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 3^rd, 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 18^th 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. healthcare 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 ...

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 ...