The U.S. Department of Labor (DOL) has announced a final rule to help employers and workers better understand when a worker qualifies as an employee and when they would be considered an independent contractor under the Fair Labor Standards Act (FLSA). Whether a worker is an independent contractor or an employee determines employer obligations such as the applicability of minimum wage and overtime requirements. Beginning March 11, 2024, the DOL will rely on the “economic reality” test to determine whether workers are in business for themselves or economically dependent on the hiring party for work. The final rule applies six factors to analyze:

           1. Whether the worker has opportunities for profit or loss based on managerial skill.

           2. The worker’s investment in equipment or materials required for the task.

           3. The degree of permanence of the work relationship.

           4. The degree to which the employer controls how the work is done.

           5. The extent to which the work performed is an integral part of the employer’s business.

          6. Whether the worker uses specialized skills to perform the work and whether those skills contribute to

              business-like initiative.

It is important to note that no single factor or set of factors conclusively determines whether a worker is an employee or an independent contractor. Supporters hope the new rule will benefit the most vulnerable workers, those who are unfairly deprived of minimum wages, overtime pay, and other FLSA protections. Businesses should familiarize themselves with the final rule and utilize the DOL’s guidance to review classification policies and worker statuses.

Cook County joins Illinois and the City of Chicago by passing the Cook County Paid Leave Ordinance, replacing the Earned Sick Leave Ordinance. Beginning January 1, 2024, all employers with employees in Cook County must provide paid leave to be used for any reason not just health reasons. Employees can earn at least 1 hour of paid leave for every 40 hours worked. If an employer provides paid leave on an accrual basis, employees may carry over up to 40 hours of unused accrued paid leave annually.  Employers who frontload the 40 hours of paid leave are not required to carry over unused paid leave.  The Cook County Paid Leave Ordinance does not distinguish between part-time, full-time, or seasonal employees. Employees are entitled to begin using paid leave 90 days after the start of their employment. Employers may set a reasonable minimum increment for the use of paid leave not to exceed 2 hours per day. This new ordinance significantly mirrors the State of Illinois’  Paid Leave for All Workers Act, which also takes effect on January 1, 2024.  Complaints based on Cook County’s Paid Leave Ordinance may be filed with the Cook County Commission on Human Rights beginning February 1, 2024.

The Chicago City Council has approved the Chicago Paid Leave and Paid Sick and Safe Leave Ordinance which significantly expands paid leave requirements for Chicago employers. The new ordinance provides covered employees up to five annual days of paid leave that can be used for any purpose and five annual days of paid sick leave that can be used for specified purposes. A Covered Employee is someone who works at least 80 hours for an employer within any 120-day period while physically present within the geographic boundaries of Chicago. Once that threshold is met, the employee shall remain a Covered Employee for the remainder of the time that the employee works for the employer. There is no distinction between part-time, full-time, or seasonal employees. Hours worked outside Chicago do not count towards the accrual of Paid Leave or Paid Sick Leave.

Covered employees are entitled to accrue 1 hour of Paid Leave and 1 hour of Paid Sick Leave for every 35 hours worked, for a maximum total of 40 hours of both Paid Leave and Paid Sick Leave per 12-month period. Employees are allowed to carry over a maximum of 16 hours of Paid Leave and 80 hours of Paid Sick Leave. If the full 40 hours of Paid Leave are frontloaded, unused time does not carry over. Importantly, this does not apply to Paid Sick Leave. Employers are still obligated to carry over up to 80 hours of unused Paid Sick Leave regardless if the leave is accrued or frontloaded. Employees are entitled to begin using their Paid Sick Leave after 30 days and their Paid Leave after 90 days.

Employers may require up to 7 days’ advance notice of a foreseeable need for Paid Leave or Paid Sick Leave. Employers may also require a note after an employee uses Paid Sick Leave three consecutive workdays in a row. Employers with at least 51 employees must pay out up to 56 hours of accrued Paid Leave upon separation of employment. Violations of the Ordinance may result in fines of up to $3,000 and employers may be liable for damages equal to three times the amount of leave denied or lost, plus interest and attorney’s fees. The Ordinance also creates a private right of action for employees.

After pushback from the business community, the Chicago City Council voted to delay the effective date of the Ordinance from December 31, 2023 to July 1, 2024. Chicago-based employers should direct any concerns about the new ordinance to the Department of Business Affairs and Consumer Protection Office of Labor Standards who is accepting public comments until February 16, 2024.

A new law may affect almost every small business in the U.S., including family offices, independent contractors, and mom-and-pop shop owners. The Corporate Transparency Act (CTA) will require every corporation, limited liability company, or other entity created by the filing of a document with a Secretary of State or similar office to file a Beneficial Owners Information report to the U.S. Department of the Treasury's Financial Crimes Enforcement Network (FinCEN). Beneficial owners are individuals who own at least 25% of or exercise substantial control over a reporting company. The CTA is an attempt to close a loophole in corporate regulations that enables criminals to hide their identities using shell companies. Entities created on or after January 1, 2024, must report beneficial owner information to the FinCEN website within 30 calendar days of creation. Existing entities have until January 1, 2025, to comply with the statute, unless they undergo ownership changes such as a sale or minor children reaching the age of majority. In this case, entities have 30 days from the date of change to comply. Failure to comply could result in fines of up to $10,000 and imprisonment for up to two years.

During a special meeting, the Chicago City Council condemned Hamas’ attack on Israel and passed an Israel Solidarity Resolution. Hamas’ brutal attack killed more than 1,300 civilians and Israeli soldiers, with the fate of many hostages remaining unclear, including U.S. citizens taken hostage.  Alderwoman Debra Silverstein, the only Jewish member of the City Council, introduced the resolution urging her colleagues to stand with Israel as it grapples with what is likely the deadliest attack on Jews since the Holocaust. The resolution does not have the force of law but expresses the collective will of the City Council.

The Chicago City Council voted to eliminate the subminimum wage for tipped employees working within Chicago by July 1, 2028. The One Fair Wage ordinance will gradually phase out the subminimum wage over a five-year period, beginning July 1, 2024. Currently, employers may take a credit against the standard minimum wage rate if their tipped employees earn enough in gratuities to bring them up to Chicago's hourly minimum wage. Right now, tipped employees are paid 60% of Chicago's minimum wage. Under the new ordinance, tipped employees’ pay would increase by 8% every year until 2028. At that point, all tipped employees working in the City of Chicago will earn the same hourly minimum wage rate as non-tipped employees. It remains to be seen how the Chicago restaurant industry responds to the new ordinance, but many expect to see blanket service charges and a steady increase in food and beverage prices at restaurants and bars for the foreseeable future. Click the title to read the full One Fair Wage Ordinance.

It starts by sharing a cute video of a coordinated dance or a funny toddler comment. But nowadays family vlogs are sharing increasingly intimate details of their children’s lives — grades, potty training, illnesses, meltdowns – for countless strangers to view online. Brand deals featuring children can reap tens of thousands of dollars per video. A new Illinois law ensures that the children in these videos see their fair share of the profit.  Effective July 1, 2024, children age 16 and under must be compensated if, within a 30-day period, they are in at least 30% of a video or online content for which the adult, whether a parent or caregiver, is being paid. The person making the videos in which the child appears is responsible for setting aside gross earnings in a trust account for the child to receive at age 18. Many states already require parents to set aside earnings for child entertainers who perform in more traditional settings such as movies and television, but this is one of the first laws specifically targeting social media stars.

Governor Pritzker amended the Illinois Equal Pay Act to mandate pay transparency in job postings for many Illinois employers. Starting January 1, 2025, an employer with at least 15 employees will be required to include the pay scale and benefits for a specific job in a job posting in Illinois. Employers can satisfy this requirement by including a hyperlink to a publicly viewable webpage that includes the relevant pay scale and benefits. If employers use a third party to post jobs, the employer must provide the pay scale and benefits to the third party, which must include that information in the post for the position or a hyperlink to the information. Employers will be required to make and preserve records that document the pay scale and benefits for each position, as well as the job posting for each position. The new law applies to any positions that are physically performed, at least in part, in Illinois and they also apply to remote positions. If the employee reports to a supervisor, office, or other work site in Illinois then employers must satisfy this new pay transparency requirement even if the work is physically performed outside of Illinois. Aggrieved persons may file a complaint with the Illinois Department of Labor within one year from the date of the relevant violation. If the Department determines that a violation has occurred, it may assess fines from $500 for a first offense up to $10,000 for a third or subsequent offense.

Today Governor Pritzker signed the Child Extended Bereavement Leave Act (CEBLA) into law. Beginning January 1, 2024, businesses with 50-249 full-time employees must provide six weeks of unpaid leave to employees who lose a child by homicide or suicide. Businesses with more than 250 full-time employees must provide up to 12 weeks of unpaid leave to affected employees. CEBLA leave may be taken in a single continuous period or intermittently in increments of no less than 4 hours, but it must be completed within one year after the employee notifies the employer of their child’s death. Employers can require reasonable advance notice as well as reasonable documentation (ie: a death certificate, published obituary, or other written verification of death). When returning from CEBLA leave, employees are entitled to the position they held when the leave began. If that position has been filled or is no longer available, returning employees are entitled to an equivalent position with equivalent pay, benefits, and job responsibilities.

Governor Pritzker signed into law House Bill 2862 amending the Day and Temporary Labor Services Act in order to strengthen the rights and safety protections of day and temporary workers. The most meaningful change provides temporary workers with equal pay for equal work. The amendments require that a worker assigned by a staffing agency to work at a third-party client for more than 90 calendar days within any 12-month period must receive (1) the same or greater pay rate and (2) equivalent benefits, as a directly hired employee comparator of the third-party client. Clients are required to provide information regarding comparable employees’ pay and benefits upon request from staffing agencies. If clients fail to provide this information, the impacted staffing agency can immediately file a civil action against the client for up to $500 per violation as well as fees and costs. Workers also have a right under the amendment to refuse an assignment to a worksite where a labor dispute exists. The staffing agency must provide, at or before the time of dispatch, a written statement that informs the worker of the labor dispute and the worker’s right to refuse the assignment without prejudice to receive another assignment. The amendments also require staffing agencies to provide workers with training on general safety awareness and industry hazards likely to be encountered at the worksite. Client companies must inform agencies of the company’s safety practices, anticipated industry hazards likely to be encountered at the worksite, and all actions taken by the company to eliminate, mitigate, or protect workers. Agencies must register with the Illinois Department of Labor and client companies must verify an agency’s registration both before entering into a contract and semi-annually. Finally, violations of the Act may result in civil penalties between $100 and $18,000 for first time violations. Subsequent violations within three years may incur increased civil penalties of not less than $250 and not more than $7,500 per violation, per laborer, per day. 

Governor Pritzker signed a law today amending the Victims' Economic Security and Safety Act (VESSA). VESSA applies to all Illinois employers and requires them to provide unpaid leave to employees who are victims of domestic, sexual, or gender violence or crimes of violence. The amendment expands the leave available to now include employees grieving a family member's death arising from a crime of violence. Beginning January 1, 2024 employees may take leave: (1) to attend the funeral or alternative to funeral or wake of a family or household member who is killed in a crime of violence; (2) to make arrangements necessitated by the death of a family or household member who is killed in a crime of violence; or (3) to grieve the death of a family or household member who is killed in a crime of violence. An employee who takes leave for one of the three new, amended purposes is entitled to a total of two work weeks of unpaid leave (10 work days), which must be completed within 60 days after the employee receives notice of the death of the victim.

The Illinois General Assembly passed the Transportation Benefits Program Act, mandating that employers who meet certain criteria offer tax-advantaged benefits to employees commuting via public transit. Beginning January 1, 2024, employers with at least fifty employees in the six-county Chicago area will have to provide their full-time employees with pre-tax public transit benefits. The Transportation Benefits Program Act applies to employers that: (1) are located in one of thirty-eight specific counties and townships in Illinois, and (2) employ fifty or more full-time employees in one of the specified geographic areas at an address that is located within one mile of a fixed-route transit service run by the Regional Transportation Authority (RTA).  The commuter benefits allow employees to use a pre-tax payroll deduction to purchase any pass, token, fare card, voucher, or similar item entitling a person to transportation on public transit.   The deduction amount can be subtracted from employees’ taxable income, up to the limit specified by federal tax law. Employers are not required to make any contributions to employees for commuter benefits, but they are allowed to do so under federal tax laws.

The EEOC has recognized May as a Jewish Heritage month by releasing a new fact sheet entitled, “What To Do If You Face Antisemitism at Work".  The intent is to educate the public about antisemitism. This is particularly timely given the increase in antisemitism and other discriminatory biases in America.  

This month, Governor Pritzker signed the Paid Leave for All Workers Act. The Act will take effect on January 1, 2024. Like the name suggests, the Act requires that Illinois workers be afforded paid leave. However, the Act does not apply to some workers, including independent contractors and workers who have entered into collective bargaining agreements. In general, Illinois workers begin to accrue one hour of paid time off for every 40 hours worked after 90 days of employment, up to 40 hours per year. More information can be found by clicking on the title.

In a recent Decision, the National Labor Relations Board (NLRB) made it harder for employers to restrict employees’ conduct in employment agreements and policies, including severance agreements.  The Decision in McClaren Macomb, (click to read), applies to former employees as well.  In McClaren Macomb, the NLRB found that non-disparagement clauses and certain standard language used in confidentiality provisions violated employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to discuss terms and conditions of employment.  According to the NLRB, including such terms in post-employment contracts like severance agreements still deters employees from exercising their statutory rights under the NLRA even though they are no longer employed by the entity. 

A deaf employee complained of discrimination under the ADA because she was not invited to team meetings. She requested the reasonable accommodation to have an ASL interpreter present at meetings and performance reviews, but the request was denied. The employee was then fired in retaliation for requesting a reasonable workplace accommodation. The EEOC brought forth a lawsuit on behalf of the employee for conduct that allegedly violated the ADA (Americans with Disabilities Act). In settlement of the matter, the employer agreed to pay compensation and make changes at the workplace, including training on the ADA to its HR and management staff. The EEOC press release and ADA guidelines on employing individuals with hearing impairments can be viewed at links provided in the full post.  

Kroger, a large grocery store chain, recently settled a suit brough forth by the EEOC on behalf of two employees. The Kroger employees refused to wear a required uniform because they believed a patch on it was supportive of the LGBTQ+ community; such support goes against their religious convictions. The employees claimed that Kroger discriminated against them on the basis of religion by punishing and ultimately firing the employees for not wearing the uniform. The EEOC argued that an employer cannot require employees to support messages in violation of their religious beliefs when such support does not pertain to an essential job function. To avoid further litigation, a settlement was reached and Kroger has implemented a clear policy for claiming religious exemptions.

Pivotal Home Solutions, which hires workers through a staffing company, reached a $175,000 settlement with the EEOC. The EEOC sued the company on the basis of disability discrimination. Pivotal, through a staffing agency, hired a worker who performed well for nearly six months. At some point, the worker informed her supervisor at Pivotal about a mental health crisis she had experienced. Though it did not affect her work, her supervisor insisted that the staffing agency fire her; the supervisor felt that the work environment would be too stressful despite the fact that the worker had a history of good performance. The EEOC believed Pivotal, not the staffing agency, was responsible because it was the effective employer who chose to terminate the employee due to disability. In fact, the staffing agency advised against the termination. An employer, even through a staffing agency, cannot discriminate against workers on the basis of disability.

Kelley Williamson’s management failed to take action to protect their employee following multiple reports of ongoing sexual harassment of an employee by a customer. During investigations regarding improper protection of the employee, the EEOC discovered that Kelley Williamson’s management also improperly disclosed the employee’s medical information during the course of her employment. As settlement for the company’s failure to protect an employee from sexual harassment and failure to protect her medical information, Kelley Williamson Company will pay $75,000 and provide other relief. Read the EEOC’s press release linked to the title of this post.

The Americans with Disabilities Act (ADA) protects workers from employment discrimination based on real or perceived disability or history of disability.  A Gas Field Specialists, Inc. employee was wrongfully terminated due to such discrimination. Allegedly, the employee was let go after his employers interpreted his medical history to mean he was at higher risk for contracting COVID-19 because he was a cancer survivor.  Under the ADA, such interpretations are inappropriate and illegal in the workplace. Read the EEOC press release linked to the title of this post.

Effective January 1, 2023, the Create a Respectful and Open Workplace for Natural Hair (CROWN) Act will expand protections against race-based hair discrimination through an amendment to the Illinois Human Rights Act.  This means that in situations regarding employment, schools, housing, and more, individuals will have legal protection against race-based bans and requirements for hairstyles.  Such bans have disproportionately affected Black individuals as these bans often discriminate against Black hair textures and protective styles, including braids, locks, and twists.  In this step toward equity, Governor Pritzker commits to “protecting our Black residents’ right to style their hair however they choose.” See the full post for links to the news release from Governor's Office and the amended language that constitutes the CROWN Act. 

According to the EEOC, an employer’s practice of collecting its employees’ family members’ COVID-19 test results violated the Genetic Information Non-Discrimination Act (GINA). GINA protects employees from discrimination based on genetic information. Following an EEOC investigation into a medical practice, the group entered a conciliation agreement to cease collecting such genetic related data. Additionally, the employer was required to provide compensation in various forms to affected employees. Read the EEOC’s press release linked in the title of this post.

THE U.S. Court of Appeals for the Seventh Circuit recently held that an employer “can violate the FMLA by discouraging an employee from exercising rights…without actually denying an FMLA leave request.” The plaintiff in Ziccarelli v. Thomas J. Dart had a number of health issues. When inquiring about FMLA leave, he was told by his supervisor that he would be disciplined if he took additional FMLA leave. Believing that the request for FMLA leave would be futile, the plaintiff retired, filing suit afterward. In reversing a lower court’s decision, the Seventh Circuit found the plaintiff met his burden of providing sufficient evidence of FMLA interference that his case could go forward, and that he could succeed if he established prejudice from the violation at trial. Read the final opinion linked in the title of this post.

One of OSHA’s (Occupational Safety and Health Administration) primary functions is to ensure that employees are protected from retaliation. After an employee voiced concerns that a transaction violated U.S. securities laws, a manufacturer removed the employee from its board of directors. The employee then resigned. In response, OSHA ordered the company to reinstate the employee, post a notice informing employees of worker protection rights, and pay compensatory damages, attorney’s fees, and back wages. OSHA enforces whistleblower provisions of the Sarbanes-Oxley Act and that of many other statutes. See the USDOL press release linked to the title of this post. 

The EEOC settled a sex harassment suit against Activision and related entities. In addition to applying for a settlement from the $18 million fund, claimants can obtain unique non-monetary relief. Claimants in EEOC v. Activision Blizzard can now have documents in their personnel files amended or removed. Documents that are subject to removal from a claimant’s personnel file include any “disciplinary notices or write-ups received as a result of being subjected to sex harassment, pregnancy discrimination and/or related retaliation.” Additionally, claimants can request that record of unfair termination is documented instead as a resignation. See the EEOC’s press release linked to the title of this post.

Effective July 1, 2022 Chicago and Cook County will require a new minimum wage. These new wage requirements may differ based on certain qualifiers such as the number of employees at a business and whether workers are tipped.
In Chicago, minimum wage will increase to $15.40 for large employers and $14.50 for small employers with at least 4 employees. Businesses that employ tipped workers may pay a lower minimum wage. However, if wages and tips for these employees equal less than minimum wage for non-tipped workers, the employer will need to pay employees the difference.
In Cook County, minimum wage will increase to $13.35 for non-tipped workers and $7.40 for tipped workers.
More information regarding minimum wage can be found for each respective jurisdiction through links listed in the full post.

Bereavement Leave is now available to employees who have experienced the loss of a child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.  According to the Child Bereavement Leave Act a domestic partner includes "the person recognized as the domestic partner of the employee under any domestic partnership or civil union... or an unmarried adult person who is in a committed, personal relationship with the employee." Bereavement leave is also available in the event of: failed assisted reproduction, such as artificial insemination; a miscarriage; a failed adoption match; or a diagnosis that negatively impacts pregnancy or fertility among other situations. Employers may require documentation to certify the legitimacy of the event. To learn more, see the full text of the law at the link embedded in the title of this post.

Starting on July 1, 2022, the City of Chicago will be updating and expanding several key requirements regarding discrimination and harassment in the workplace, with a special emphasis on sexual harassment.  The Ordinance not only applies to businesses located in the City of Chicago, but also to organizations licensed to work within the city.   Employers are required to have a written policy regarding sexual harassment with certain mandatory provisions including mandatory bystander training for employees and an additional minimum hour of training for employees acting in supervising or managing capacities.  Said policy must be presented to employees within a week of their being hired.  Another notable change brought about by the ordinance is that employees will now have 365 days from the date they experienced harassment or discrimination to file a claim with the City of Chicago Commission on Human Relations.  The Ordinance also amends the definition of Sexual Harassment to include "sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual's employment position."  For more detailed information regarding the changes, follow the link embedded in the title of this post to see the text of the ordinance.

President Biden signed a law on March 3, 2022 amending the Federal Arbitration Act to stop employers from requiring arbitration in sexual assault and sexual harassment cases. Agency is now transferred to employees, who can still choose arbitration should they desire it. This change notably increases public access to information that would be otherwise protected by arbitration confidentiality provisions.

In an effort to ensure domestic workers have stability in their schedules and pay, Mayor Lori Lightfoot and the Chicago Department of Business Affairs and Consumer Protection passed an ordinance amending the general employment requirements of Chicago's Municipal Code. Beginning January 1, 2022, employers are required to provide their domestic workers with written contracts that specifically set forth the domestic worker's work schedule and wage, as agreed by the employer and domestic worker. The contract must be provided in the worker's preferred language. The code defines a "domestic worker" as a person whose primary duties include housekeeping; house cleaning; home management; nanny services, including childcare and child monitoring; caregiving, personal care or home health services for elderly persons or persons with illnesses, injuries, or disabilities who require assistance in caring for themselves; laundering; cooking; companion services; chauffeuring; and other household services to members of households or their guests in or about a private home or residence, or any other location where the domestic work is performed. Domestic workers who do not receive a written contract can file reports with Chicago’s Bureau of Labor. The Ordinance provides for a $500 fine per violation.

The Victims’ Economic Security and Safety Act (VESSA) has been amended effective January 1, 2022. The amendments redefine pertinent terms and hold that discrimination against employees seeking to take leave under VESSA is unlawful. Generally, VESSA exists to allow employees to take unpaid time off to grieve or care for a family or household member who has experienced a crime of violence. Some of the Act’s definition changes are as follows. “Family or household member” has been reworded to include a spouse or party to a civil union, parent, grandparent, child, grandchild, sibling, an individual whose close association with the employee is equivalent to familial ties, persons jointly residing in the same household, or any other person related by blood, marriage, civil union, or through a child. “Crime of violence” has been added and means “any conduct proscribed by [certain Articles] of the Criminal Code of 2012 or… the Criminal Code of 1961. Additionally, the definition of “parent” has been removed from the Act. These amendments broaden the Act’s impact and can be found linked in the title of this post.

The amendments to the Illinois Freedom to Work Act pertaining to certain restrictive covenants including non-compete and non-solicitation agreements are now in effect.  Notably, the law prohibits non-compete agreements for employees who earn at or below $75,000 annually and non-solicitation agreements for employees earning at or below $45,000 annually.  The law also includes provisions regarding enforcement of the agreements and other requirements in order for such agreements to be enforceable. The changes are effective today, January 1, 2022. 

The EEOC brought a sex discrimination lawsuit against a trucking company that utilized a strength test in its hiring and employment decisions. To settle the case, the aforementioned company agreed to pay $500,000 and offer employment to women who had been denied employment based on their test results. The CRT test was thought to disproportionately disqualify women seeking employment or returning from injury-related leaves of absence. It was believed to discriminate against women while not providing results that would accurately measure ability to complete job tasks. According to a regional EEOC attorney, as part of the agreement, “Employers have to demonstrate with valid evidence that the tests they use can actually predict the outcomes they are looking for.”

On January 1, 2022 House Bill 12 will take effect, offering greater protection to over 25,000 education support professionals or ESPs. This bill, passing easily through the House and Senate with majorities of 95-14 and 47-3 respectively, lowers the eligibility requirement for family and medical leave from 1,250 to 1,000 hours worked within the previous twelve-month period for ESPs. ESPs will have increased access to benefits under the Family and Medical Leave Act including 12 weeks of unpaid leave to care for themselves or relatives in the event that a serious illness is contracted, among others.

Effective January 1, 2022, the Limited Liability Company Act was amended to prohibit operating agreements from restricting fiduciary duties under the common law unless the restriction is clear and unambiguous in the operating agreement.  However, the operating agreement cannot alter the duty of care to authorize intentional misconduct or a knowing violation of the law.  The operating agreement may enumerate specific categories or types of activities that are explicitly permissible and do not violate a fiduciary duty.  This change will affect all future operation agreements whether written or amended.

The Business Corporation Act of 1983 has been amended, effective January 1, 2022 to allow for remote meetings of shareholders. Shareholders are considered present and able to vote if two conditions are met: 1) the corporation can demonstrate it implemented reasonable measures to verify each shareholder’s identity and 2) provide each of them with an opportunity to vote and read or hear the meeting’s proceedings. The amendment also provides that unless otherwise specified in the by-laws, said remote meetings may replace in-person meetings entirely or be instituted with some members in person and some members remote.

As of March 23, 2021, the Illinois Human Rights Act (“Act”) was amended to limit employers’ use of criminal conviction records when making employment decisions (see section 5/2-103.1).  Previously, the Act prohibited employers from inquiring about arrest records of their employees and prospective employees.  Now conviction records may be off the table.  According to the Act, there are two exceptions when employers may inquire into a conviction record.  First, an employer may seek such information if there is a substantial relationship between the previous criminal offense and the employment position.  Second, the employer may request more information if there is an unreasonable risk to public safety if the employee were to be employed.  If said criminal conviction history is used as a basis for an employment decision, the employer must notify the employee in writing as to why they were fired or not offered the job, give them a copy of the criminal background check, information as to how they can challenge the decision or the information, and notify them of their right to file a charge with the Illinois Department of Human Rights.

In a lawsuit brought by the EEOC, a rehabilitation center agreed to pay nearly $150,000 to a pregnant employee who lost her job while on a pregnancy-related leave.  Said employee underwent a Caesarean section and was given an 8-week recovery timeline by her doctor, exceeding the 30-day leave from her employer. Consequently, she was fired. The same employer granted leave beyond 30 days to non-pregnant employees in the past and was thought to have discriminated against the pregnant employee.  In the consent decree entered by the court, the employer was required to train its employees on pregnancy discrimination, provide paid parental leave, and amend its policy to allow for leave in excess of 30 days.

Effective June 25, 2021, as the hospitality industry recovers and rehires, hotels cannot hire new employees until they have contacted former employees furloughed due to the pandemic. According to the Hotel Worker Right To Return To Work Ordinance (Ordinance), hotels must make thorough, honest efforts to contact former employees including by mail, email and text message to offer them positions they previously held or are qualified for. Former employees have up to 5 business days to accept the offered position. Beyond the 5-day period, hotels may move forward with new hires. In the event that multiple former employees express interest in a given position, the Ordinance states hiring decisions should be based on previous employee seniority.

The EEOC brought a discrimination case against Walmart on behalf of a long-standing employee who had been fired because of a disability.  It was demonstrated in the case that Walmart altered their scheduling that had been in place for years, causing hardship to the employee.  Upon the employee’s request to return to the original schedule, she was fired.  When the newly fired employee re-applied, she was denied a position because of her disability.  In a tremendous show of support for the former employee, the jury found Walmart guilty of disability discrimination and awarded her $125 million in punitive damages.

Last week Governor Pritzker signed legislation amending the Illinois Wage Payment and Collection Act. Under the amended Act, for each month an employee is underpaid, they are entitled to receive interest at a rate of 5% of the underpayment plus the owed wages. The change reflects a 150% increase from 2% to 5% and matches the Illinois Minimum Wage Act’s penalty.

In an 8-1 ruling, the United States Supreme Court decided Mahoney Area High School violated the first amendment rights of a student who posted an angry message containing “vulgar language and gestures” to social media.  As a result of her post, the school barred the student from the cheer team for one year when her temporary image was discovered on Snapchat.  Interestingly, the post was made while the student was off-campus.  The Court held that the school’s conduct was against the student’s free speech rights.  While schools may regulate student speech off-campus in certain circumstances, including in cases of severe bullying or harassment, the Court largely weakened the ability of schools to regulate off-campus student speech in three key ways.  First, the Court stated that in off-campus speech, schools “will rarely stand in loco parentis [in place of parents].” Second, with regard to political and religious speech, “the school will have a heavy burden to justify intervention.” Third, schools have an interest in protecting unpopular speech in order that they teach students to do the same.  In so doing, schools and students strengthen American democracy by defending the marketplace of ideas and encouraging an informed public opinion.

Lake States Lumber, a wholesale distributor and manufacturer of wood products, agreed to pay $100,000 and implement certain changes in the workplace in order to settle a disability discrimination suit.  The case arose upon an employee's return to work following heart surgery.  Once back at work, the employee was transferred to a different job and terminated 9 days later.  Despite the employee returning to work without any medical restrictions, it appeared that the company perceived the employee as being unable to perform the employee's job.  This should be a wake-up call to employers that it is considered discriminatory to stereotype and regard employees as being unable to work in the same capacity as the employee did prior to a medical leave.  The terms of the settlement also require the employer to abolish its policy of requiring employees to be released without restrictions or 100% healthy upon returning to work.  

The City of Chicago passed an ordinance entitled “Establishment of COVID-19 vaccination rights for workers and prohibition of retaliation by employers.” One such vaccination right is that employees must be allowed, but not required, to use their paid leave to receive the vaccine during working hours. Further, employers cannot “take adverse action” against employees who request time off to receive the vaccine. The ordinance also provides that employers are not prohibited from requiring employees to be vaccinated. However, if the employer requires vaccination and the employee is vaccinated during their work hours, employers must pay their employees for that time.

In a case of first impression involving a Series LLC, City of Urbana v. Platinum Group Properties, LLC,  the court found a misnomer occurred when the City of Urbana filed suit against Platinum Group Properties, LLC and not the individual series that was responsible for the violation.  Since the matter involved a misnomer as opposed to mistaken identity, the court allowed a judgment to stand because the same individual who owned the “parent” LLC admitted ownership of the series at issue and never filed with the court a certificate of designation for that series LLC.  Importantly though, the laws regarding an entity organized as a Series LLC were interpreted by the court, which affirmed “parent” LLCs were distinct entities from their series within the Series LLC.  An important take-away from the case is that in order to demonstrate the independence of an entity within a series LLC from that of its “parent” LLC in court, the series LLC must present its certificate of designation. For more information, visit the following link.

A leading national food distributor will pay $5,075,00 to settle a federal nationwide sex discrimination lawsuit.  Since at least 2004, the company engaged in an ongoing pattern or practice of failing to hire female applicants for certain positions, or to promote qualified women to fill certain roles.  Women were precluded from positions like nighttime warehouse supervisor, drivers, and selectors.  This alleged conduct violates Title VII of the Civil Rights Act of 1964.  The five-year consent decree that resolved the lawsuit provides equitable relief and damages, including paying $5,000,000 to the female applicants that were not hired, and $75,000 to the female worker who was not promoted.  While the consent decree enjoins the company from failing to hire women for specific positions and from engaging in retaliation, it also requires the company to hire a Vice President of Diversity to ensure hiring decisions for these positions are made without regard to sex, to oversee the company’s compliance with the terms of the consent decree, and to report to the EEOC, among other things.  Click the title above for further details. 

When a teacher was hired in 2006 she was told by the hiring director that she did not need a higher starting salary because her husband worked too.  This discriminatory approach affected her pay during her tenure.  In 2017 she tried to rectify the situation.  She brought to the Dean's attention that her similarly situated male colleagues made more money than she.  The Dean responded that there was nothing discriminatory about the pay disparity.  Merely, the others had higher starting salaries, so they happened to earn more than her despite her having received proportionately higher pay increases than that of her similarly situated male colleagues. Since the Academy refused to rectify its discriminatory pay practices that it attributed to "salary compression" she sued in 2018.  In Cheryl Kellogg v. Ball State University, the United States Court of Appeals for the Seventh Circuit decided that her discrimination in pay case should go forward.  The 7th Circuit started its analysis with the paycheck accrual rule, codified by the Lilly Ledbetter Fair Pay Act of 2009.  Under the Ledbetter Act, discrimination in compensation occurs each time wages are paid that are based on a discriminatory practice, even if that underlying discriminatory practice was past a statute of limitations.  Thus, every time the teacher was paid wages based on the 2006 discriminatory starting salary she had a new claim against her employer. And since the Equal Pay Act and Title VII of the Civil Rights Act prohibit discrimination in pay, the statement by the hiring director in 2006 was sufficient to establish that her employer discriminated against her based on her sex.  Click on the title above to read the 7th Circuit's decision in its entirety.      

A temp agency agreed to pay $568,000 to resolve a race and sex discrimination lawsuit brought by the EEOC.  The lawsuit alleged the temp agency discriminated against black and female applicants and employees by refusing to send them on work assignments or by sending them for fewer work hours than others.  Even though the temp agency claimed that clients did not want black workers, or only sought men for certain assignments, the EEOC believed such conduct by the temp agency violated Title VII of the Civil Rights Act of 1964.

A CBS Broadcast affiliate agreed to pay $215,000 and furnish significant equitable relief to settle a federal age discrimination lawsuit.  The station’s affiliate refused to hire an amply qualified woman as a traffic reporter based on her age.  Instead, it hired a 24-year-old woman who was a former NFL cheerleader who did not meet the hiring criteria the station advertised.  Such alleged conduct violates the Age Discrimination in Employment Act of 1967 (ADEA) which prohibits discrimination against people age 40 or older.

A hotel operator paid $60,000 to settle a discrimination claim by a female employee with epilepsy.  The woman had a seizure at home after work, asked for two days off to recover, and was fired upon her return because the disability-related absences occurred during her probationary period.  This conduct violated the Americans with Disability Act (ADA) of 1990, which prohibits workplace discrimination on the basis of disability.  Under the ADA, disability discrimination is prohibited at all stages of employment, including during a probationary period.

A black employee of a fence company was harassed by his co-workers and a warehouse manager, who used racial slurs and made offensive comments about black people in his presence, at one point even teasing him with a noose, until he quit his job.  This conduct violated Title VII of the Civil Rights Act of 1964.  What is of particular interest about this case is the fact that the company paid $25,000 in a settlement to the employee even though he quit and never reported the harassment.  The EEOC found that the employee established a viable case for constructive discharge because the manager violated his duty to report such harassment, and that this harassment led to the employee quitting.  Click the title above to view the full summary by the EEOC.

A limousine company agreed to pay a deaf job applicant $30,000 after the company refused to hire the applicant based on his disability, simply assuming he couldn’t do the job.  Such conduct violates the Americans with Disabilities Act (ADA).  In addition to paying damages, as part of a consent decree entered by the court, the limo company agreed to train managers and supervisors on disability discrimination and requests for reasonable accommodations under the ADA.  Click on the title above for further details.

Since Congress passed the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) has been charged with its enforcement.  The FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for COVID related reasons.  Click the title above to view but a few examples of the businesses that the DOL has cracked down on during the pandemic.  

At the end of June, Illinois Governor J.B. Pritzker announced the movement of Illinois into Phase 4 in the prevention of the spread of COVID-19.  Employers must continue to follow health and safety guidelines, including displaying the new notice outlining practices and procedures to help keep workers healthy.  Click on the title above to view the notice.

In a landmark decision, the United States Supreme Court (SCOTUS) in Bostock v. Clayton County, Georgia ruled that unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of sexual orientation and gender identity.  The surprising 6-3 decision is a huge victory for the LGBTQ community.  Authored by Justice Gorsuch, the decision covers a detailed analysis of what it means to discriminate against someone in the employment context because of their sex.  The matter involved three cases brought before SCOTUS in which a long standing employee who was either homosexual or transgender was terminated after the employer discovered that the person was gay or transgender.  Click the title above to view the decision in its entirety. 

On April 30, 2020, Illinois Governor Pritzker signed an Executive Order that took effect May 1, 2020, extending Illinois’ “stay-at-home” order for a third time, through the end of May 2020, and making some modifications to the previous order.  In addition to extending the recommendation that Illinois residents stay at home as much as possible, the order presented some new rules, such as all “essential” businesses in which workers cannot maintain at least 6 feet of social distance shall provide their employees with face coverings.  Stores, like supermarkets and pharmacies, must limit the number of people that can be in the store at one time to 50% of the maximum occupancy.  Customers over the age of 2 in these stores, as well as in any public place where maintaining 6 feet of distance from others may be difficult, are also required to wear face coverings.  Non-essential retail businesses may re-open, but only to fulfill online or telephone orders, delivering goods curbside or by mail to customers.  Manufacturers must modify their operations with measures like staggering shifts, reducing line speeds, and operating only essential lines to minimize contact between employees.  Click the title above the view the full April 30th Executive Order.

As the public health pandemic involving COVID-19 unfolds, Governor Pritzker signed an Executive Order on March 20, 2020 requiring all individuals in Illinois to stay home unless they fall under certain exceptions, such as essential businesses and operations or businesses essential for infrastructure.  The Order also includes further details regarding travel, social distancing, and what activities are and are no longer permitted in Illinois.  The Governor’s entire Order is linked above. Additionally, Congress passed the Families First Coronavirus Response Act.  It includes provisions to provide paid sick leave and free coronavirus testing to employees, extended FMLA benefits, food assistance and unemployment benefits, and requires employers to provide additional protections for health care workers.  View the full bill here: https://www.congress.gov/bill/116th-congress/house-bill/6201

Earlier this year, the Department of Labor (DOL) published its final rule in connection with the white-collar overtime exemptions. Beginning January 1, 2020, the salary threshold for these overtime exemptions will be raised from $455 per week to $684 per week (equivalent to an annual full-time salary of $35,568). Employers may also use non-discretionary bonuses and incentive payments, including commissions, to satisfy up to 10% of the new salary threshold, so long as they are paid at least annually. The rule also raises the total compensation requirement for highly compensated employees from the current $100,000 per year threshold to $107,432 per year. Employees must be paid a salary of at least the minimum salary threshold amount and meet certain duties tests to be exempt from overtime under the Fair Labor Standards Act (FLSA). If either the salary threshold or the duties test is not met, the employee must be paid overtime at 1.5 times her or his regular hourly rate for any hours worked in excess of 40 hours in a workweek. This is the first change to the federal minimum salary threshold for overtime pay since 2004. Employers should use this publication of the final rule as an opportunity to review their current pay and employee classification practices.

Major retail chain Dollar General will be required to pay $6 million and provide other relief stemming from a class action discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit alleged that Dollar General violated federal law by denying employment to African Americans at a significantly higher rate than white job applicants for failing the company’s broad criminal background checks. Employment screens that have a disparate impact on the basis of race violate Title VII of the Civil Rights Act of 1964, unless an employer can show the screen is job-related and is a business necessity. Under the terms of a three-year consent decree, in addition to paying the $6 million settlement, if Dollar General chooses to use a criminal background check it must hire a criminology consultant to develop a check based on factors including the time since conviction, the number of offenses, the time and gravity of the offenses and the risk of recidivism. “Unlike other background checks based on unproven myths and biases about people with criminal backgrounds, Dollar General’s new approach will be informed by experts with knowledge of actual risk,” said Gregory Gochanour, regional attorney for the EEOC. EEOC Chicago District Director Julianne Bowman added, “This consent decree reminds employers that criminal background checks must have some demonstrable business necessity and connection to the job at issue.”

The federal appeals court sitting in Illinois ruled that BNSF Railway Co. did not violate the Americans with Disabilities Act (“ADA”) by refusing to hire an obese candidate due to his heightened risk of developing certain obesity-related medical conditions. In Shell v. Burlington Northern Santa Fe Railway Co., the plaintiff alleged that he was rejected after applying for work due to his obesity and the employer’s concerns about future medical issues relating to his weight. BNSF prohibits employees with a BMI over 40 from working in safety-sensitive roles due to concerns over sudden incapacity based on medical conditions associated with their weight, such as sleep apnea, diabetes, and heart disease. While the plaintiff had no current disabling medical conditions, he alleged that BNSF essentially treated him as though he currently had those conditions by refusing to hire him based on the risk of future disabilities developing as a result of his obesity. The ADA prohibits discrimination in employment against persons who are disabled, as well as those who are regarded as disabled. The plaintiff argued that he was “disabled” under the ADA’s definition of that term because BNSF had “regarded him as” having a disability.  The 7th Circuit disagreed, saying that the plaintiff was not regarded as currently disabled because BNSF’s policy is clearly based on fears over development of future medical conditions.  According to this recent ruling, the ADA’s reach does not extend to potential or likely future disabilities of currently non-disabled individuals. Therefore, the ADA’s protection on discriminating against workers because of perceived disabilities does not extend to a worker’s risk of future impairment.

Breakthru Beverage Illinois, a major alcohol distributor, agreed to pay $950,000 to settle allegations of discrimination in how it assigned its sales employees. The U.S. Equal Employment Opportunity Commission (EEOC) led an investigation into the company and “found reasonable cause to believe that BBI discriminated against Illinois sales employees by offering them account and territory assignments that, when accepted, resulted in national origin or race discrimination.” Breakthru Beverage denies it engaged in discriminatory conduct but agreed to settle rather than go to court. In addition to paying $950,000, the company agreed to conduct anti-discrimination training for its Illinois sales force, encourage diverse applicants to apply, and revise its policies to expressly prohibit making assignments based on race or national origin. It may seem reasonable for a company to send a sales rep based on national origin or race to a place that is run by a person of that same national origin or race. After all, culturally similar people working together may lead to increased sales. But this case suggests that employers should set up sales territories and the sales reps who service those territories irrespective of the sales reps’ race or national origin. Otherwise, they could find themselves in the middle of an EEOC discrimination claim. “Even when pay and benefits are the same, a divided workforce can lead to decreased employee morale and reduced promotional opportunities for minority applicants,” said EEOC Chicago District Director Julianne Bowman. 

A jury determined that Walmart violated federal law when it refused to accommodate the disabilities of a longtime employee. According to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), a disabled employee worked as a cart pusher for Walmart for 16 years before a new manager started at the store. The employee has a developmental disability and is deaf and visually impaired, which required the reasonable accommodation of assistance from a job coach provided by public funding.  A new store manager suspended the employee and forced him to resubmit medical paperwork in order to keep his longstanding reasonable accommodation. When the employee and his legal guardian submitted new medical paperwork, the store cut off communication and effectively terminated him.  After a 3½-day trial, the jury found for the plaintiff and awarded the employee $200,000 in compensatory damages and an additional $5 million in punitive damages.  Helen Bloch is no stranger to these type of cases. She regularly sees clients who are treated completely different at the same job when a new supervisor comes onboard, or a new company directive is implemented following a change in management. Oftentimes the employer no longer provides the same accommodations that have worked for years, whether that be working from home, accommodating a religious practice, or accommodating a medical condition. “Employers have a legal obligation under federal law to work with employees who need accommodations for disabilities," said Gregory Gochanour, regional attorney for the EEOC. As this case shows, if employers fail to live up to their obligation, they will be penalized.

The U.S. Equal Employment Opportunity Commission (EEOC) prosecuted Transport America, a trucking company, for requiring its employee to pay a fee to have a service dog accompany the employee, even though the animal was required as a reasonable accommodation for the driver’s anxiety. Charging an employee more to have a service animal as a reasonable accommodation can, under certain circumstances, violate the Americans with Disabilities Act (ADA). In the consent decree settling the suit, Transport America must pay $22,500 to the trucker and revise its policies to permit qualified employees with disabilities to use a service animal without any additional surcharge or cost to the employee. Companies should remember that it isn’t enough to simply provide reasonable accommodations, such as service animals, for qualified individuals with disabilities. “They also must avoid placing any burden on the employee with a disability that is not placed on employees who do not need the accommodation or who do not have animals accompany them,” says Julianne Bowman, district director for the EEOC’s Chicago District.

In 2013, Illinois passed a law amending the Use Tax Act in which the State criminalized sales suppression devices. Sales suppression devices or software, often called tax zappers, enable businesses to underreport taxable sales by erasing true records of sales and creating false records. Tax zappers automatically delete some or all of a business’ records of cash sales transactions and reconcile data so that reported sales appear to match reported income. Illinois is now going after that missing sales tax revenue.  In 2017, an owner of Cesar’s Killer Margaritas restaurant was charged with using an automated sales suppression device to underreport more than $1 million in sales to the Illinois Department of Revenue.  That owner recently pleaded guilty to possessing an automated sales suppression device and was sentenced to two years in prison and one year of unsupervised release.  See above included link for the underlying legislation.

After investigating allegations of discrimination raised by a former employee, the U.S. Equal Employment Opportunity Commission (EEOC) determined that it was probable that Barenbrug USA violated several federal statutes by conditioning employees’ receipt of severance pay on an overly broad sever­ance agreement. The terms in the agreement interfered with employees’ rights to file charges and voluntarily cooperate with the EEOC. The company also violated federal law by failing to provide legally required disclosures to employees subjected to a reduction in force. The EEOC said that through these practices, Barenbrug violated the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the Age Discrim­ination in Employment Act (ADEA), the Equal Pay Act of 1963 (EPA), and the Genetic Information Nondiscrimination Act (GINA). As part of a conciliation agreement with the EEOC, the company agreed to revise its separation agreements going forward. Barenbrug also agreed to revise past agreements and notify signatories who signed prior versions that they could file a charge of discrimination with the EEOC. “Increasingly, we are seeing employers including overbroad language in their separation agreements that interfere with employees’ rights to participate in EEOC processes, such as filing a discrimination charge, or that impedes the EEOC’s ability to enforce federal anti-discrimination laws as it deems necessary,” said Julianne Bowman, district director of the EEOC. Employers should pay close attention to the language in their separation agreements to ensure it is not so broad so as to violate federal law and interfere with employee rights.

Publicly held domestic and foreign corporations with principal executive offices in Illinois will soon have to file public disclosures about the racial, ethnic and gender diversity of their boards of directors. The new law, an amendment to the Business Corporation Act of 1983, aims to enhance gender and racial diversity in Illinois-based companies. Effective immediately, corporations must include additional information in annual reports submitted to the Secretary of State that the Secretary will make available to the public online. The additional information includes the self-identified gender of each member of its board of directors; whether each board member self-identifies as a minority person and which race or ethnicity to which the member belongs; the corporation’s process for identifying and evaluating nominees for the board; the corporation’s process for identifying and appointing executive officers; and the corporation’s policies and practices for promoting diversity, equity, and inclusion among its board and executive officers. The new law also calls on the University of Illinois System to analyze the data and publish reports providing aggregate data as well as individualized ratings for each corporation. Corporations must report the new required information as soon as practicable, but no later than January 1, 2021. The required information also must be updated in each annual report filed with the Secretary of State thereafter.

Beginning July 1, 2020, the definition of “employer” will change in Illinois. Currently, entities are required to have a minimum of fifteen employees to be subjected to the state’s anti-discrimination laws for most protected categories (e.g. race, religion, national origin, age, marital status, order of protection status, military status, or sexual orientation). But a recent amendment to the Illinois Human Rights Act (IHRA) will define “employer” as any entity that employs one or more persons. The new definition expands coverage of the IHRA to all employees, including the new anti-harassment protections that were recently signed into law. This means small business employers may face increased liability with respect to harassment and discrimination claims.

Today Governor Pritzker signed the Workplace Transparency Act (“WTA”), comprehensive legislation that is designed to help prevent sexual harassment and discrimination in the workplace and protect victims as they come forward. The bill contains several provisions which will have a significant impact on employers beginning January 1, 2020. First, the WTA extends harassment protections to contractors, subcontractors, vendors, consultants, and other contract workers. Secondly, the WTA prohibits employers from requiring workers to sign harassment-related confidentiality and non-disclosure agreements as a condition for starting or keeping a job. The WTA also restricts the use of agreements requiring employees to arbitrate harassment and discrimination claims. Additionally, the WTA amends two other laws, the Illinois Human Rights Act (“IHRA”) and the Victims’ Economic Safety and Security Act (“VESSA”), to increase protection for victims of sexual harassment or discrimination. The IHRA is amended to prohibit discrimination based on any actual or “perceived” protected characteristics. This means that even if the employee isn’t in a protected class, the employee could bring a claim under the IHRA because she was discriminated against or harassed because the employer believed she was in a protected class such as race, religion, national origin, age, sex, marital status, order of protection status, disability, military status, sexual orientation, or pregnancy. VESSA requires employers to provide 8-12 weeks of unpaid leave for employees to address issues arising from domestic violence, sexual violence and now, per the WTA, sexual harassment. The harassment need not have a connection to the workplace in order for the employee to qualify for the leave under VESSA. Finally, all Illinois employers, regardless of size or type of employer, will be required to provide sexual harassment training to all employees on a yearly basis. Every employer will also be required to report annually any settlement, adverse judgment, or ruling against them involving harassment or discrimination to the Illinois Department of Human Rights. Failure to report can result in fines ranging from $500 to $5,000 depending on the size of the employer and whether there have been previous violations.

Governor Pritzker signed legislation today that is intended to help women in the workforce and close the gender pay gap. Despite federal and state laws, on average, women still earn considerably less than men. The new law, an amendment to the Illinois Equal Pay Act, tries to address that by banning employers from asking job applicants how much they made in previous roles. An employer can no longer (1) screen job applicants based on current or past wages or salaries; (2) request or require a wage or salary history from the applicant in order for the applicant to be considered for an interview or for employment; and (3) request or require that an applicant disclose wage or salary history as a condition of employment. While it’s still fair game to ask candidates about salary expectations, employers should tread lightly around the topic. The new law also prohibits employers from paying a lower wage based on gender for identical or similar work for jobs that are “substantially similar” in skill, effort, and responsibility. "It’s no longer acceptable to wring quality work out of capable women at a discounted rate,” said Governor Pritzker.

A new law intends to break barriers for Illinois residents arrested or convicted of a crime and help them seek employment in the health care industry. Previously, only health care providers who extended a conditional offer to an applicant could begin a fingerprint-based background check. This new law, SB 1965, allows applicants with disqualifying conditions, due to arrests or convictions, to obtain waivers before receiving a job offer. SB 1965 also creates a more efficient health care waiver application process and it expands the list of eligible organizations that can initiate a fingerprint-based background check and request waivers to include workforce intermediaries and pro bono legal service organizations. “I’m so proud that this legislation will dismantle another part of the wall that blocks people with records from living a dignified life,” said Governor Pritzker. The new law is effective immediately.

Beginning January 1, 2020, there will be no statute of limitations for criminal sexual assault, aggravated criminal sexual assault, or aggravated criminal sexual abuse. Previously, prosecutors had ten years to bring charges if an offense was reported to law enforcement within three years after it occurred. Eliminating those limits makes sense given the fact that sex-crime victims are often too traumatized or overwhelmed to immediately pursue criminal charges against their attackers. While expired cases cannot be prosecuted under the new law, current cases that have not expired will no longer have a statute of limitation. The new law will allow alleged victims “to have their day in court, whenever that day comes,” said Representative Keith Wheeler, one of the bill’s sponsors.

Chicago City Council unanimously passed the Fair Workweek Ordinance, which mandates that covered employers give workers advance notice of their schedules. Employers who fail to comply with the Ordinance will face financial penalties if they change shifts unexpectedly. Beginning July 1, 2020, employers are required to post employee work schedules at least 10 days in advance of scheduled shifts; that notice will increase to 14 days in 2022. The law applies only to businesses with 100 or more employees, to nonprofits with more than 250 employees, to restaurants with at least 30 locations and 250 employees globally, and to franchisees with four or more locations. The rules apply to employees who spend the majority of their time working within the City of Chicago and make less than $50,000 per year or $26 per hour if paid an hourly wage. The Ordinance details how a covered employer may lawfully alter a schedule when insufficient notice is available. A copy of the Ordinance can be found by following the attached link and then clicking on the attachment on the City of Chicago website. 

Today Governor Pritzker signed legislation that legalizes the sale, possession and use of cannabis by persons 21 and older for recreational purposes. The new law, the Illinois Cannabis Regulation and Taxation Act (“CRTA”), allows adults to purchase and possess up to 15 grams of marijuana for out-of-state residents and 30 grams of marijuana for Illinois residents (or the equivalent amount of oils or edibles) from a licensed dispensary. The CRTA also maintains important protections for employers. Employers can still enforce reasonable workplace policies such as "drug free" or "zero tolerance" policies. They can also discipline an employee who is under the influence of cannabis while in the workplace up to, and including, terminating the employee. Additionally, the CRTA precludes employees from being under the influence of cannabis not only in the workplace, but also if they are on call. However, Illinois employers must be cautious in applying these policies so as not to violate a different law, the Illinois Right to Privacy in the Workplace Act ("IRPWA"). The IRPWA prohibits employers from taking an adverse employment action based on an individual's use of legal products while off duty and not at the workplace. Accordingly, Illinois employers should not rely solely on a positive drug test as conclusive evidence of an employee's use of or impairment by marijuana in the workplace or while on call. The CRTA does not preempt federal law criminalizing the use and possession of marijuana, or an employer's obligations under federal Department of Transportation regulations or as a federal contractor. Illinois employers should review their policies and procedures to ensure they comply with both federal and state marijuana law as applicable.

Beginning July 1, 2019 employers who have been operating in Illinois for at least two years will be required to participate in a state-run retirement savings program or offer another qualifying retirement plan. The Illinois Secure Choice Savings Program Act (820 ILCS 80/), adopted in 2015, requires employers with 25 or more workers who do not already offer their employees a retirement plan to automatically enroll their workers aged 18 and older in the Illinois Secure Choice Savings Program, a state-run payroll-deduction Roth IRA. Employers with 100 – 499 employees must register for the Secure Choice Program by July 1, 2019 and employers with 25 – 99 employees must register by November 1, 2019 (employers with 500+ employees were required to register in late 2018). Participating employers will be required to automatically enroll employees in the savings program, withhold five percent of an employee’s compensation (up to an annual IRS maximum), and remit employees’ contributions to the Program, unless the employee elects a different amount or opts out of the Program. Full-time and part-time employees are eligible as well as seasonal employees if they work for the employer for more than 60 days. The Secure Choice Program is not intended to be an employer-sponsored retirement plan. The Act does not allow employer matches or contributions. The employer requirement is limited to offering the Secure Choice Program to new workers (using materials provided by the Secure Choice Program manager), providing an annual enrollment period for ongoing employees, automatically enrolling workers who do not opt out, and depositing worker payroll deductions into the Program’s trust fund. Penalties for noncompliance begin at $250 per employee per year initially, and increase to $500 per employee if the employer continues to be in violation of the Act. An employer is exempt from the Secure Choice Program if it offers another retirement plan such as a 401(k) plan or any other plan qualified under Internal Revenue Code section 401(a). Thus, it is important for employers to thoroughly examine all the options available to determine whether implementing a qualified retirement plan may be a better alternative.

The Illinois Supreme Court has ruled a church and its pastor can be liable for a youth minister's sexual assault of a teenage church member. In Doe v. Coe, 2019 IL 123521, the court found plaintiffs, Jane Doe and her parents, made a plausible case that the church and its pastor could have circumvented the assault by acting on signs the minister was allegedly a pedophile. The lawsuit alleged that the First Congregational Church of Dundee (FCCD) and its pastor, Aaron James, negligently hired, supervised, and retained FCCD’s director of youth ministries, Chad Coe. At issue is whether FCCD knew or should have known at the time it hired Coe that he had a sexual interest in children and, once hired, was there a general foreseeability that the assault could occur. Plaintiffs alleged that FCCD failed to conduct a background check before hiring Coe. They further alleged that a simple Google search of Coe’s name would have revealed his pseudonym, BluesGod88, and that he used that pseudonym on certain pornography websites, including to post obscene photos of himself. Furthermore, Justice Garman found plaintiffs made a reasonable argument that the church and pastor allegedly failed to monitor Coe. Plaintiffs alleged the pastor took no action after receiving reports from an early childhood professional that Coe behaved inappropriately with Jane Doe. The church and pastor also provided Coe with unsupervised access to children and failed to monitor those interactions. According to the court, it is generally foreseeable that abuse could occur under such circumstances. “We do not, at this stage, determine whether negligence has been proven but merely whether facts have been alleged that, if proven, could entitle plaintiffs to recovery,” Garman said. The case has been remanded to the circuit court.

Today Governor Pritzker signed Senate Bill 1596 which amends the Illinois Workers Compensation and Occupational Diseases Acts (“Acts”), effective immediately. The new law creates an exception to the workers’ compensation system by allowing civil actions to be brought against Illinois employers in latent injury cases. Previously, the Supreme Court held that an employee's action was barred by the exclusive remedy provisions of the Acts.  Further, employers have been able to rely on a 25-year statute of repose that limits the time for a worker to bring a claim. A statute of repose begins to run when a specific event occurs regardless of whether any injury has resulted or been discovered yet. Occupational illnesses often do not manifest themselves until decades after a claimed exposure to asbestos or other toxic substances. The statue of repose prevented many workers from filing claims for occupational diseases because they had not learned of their illnesses until long after the deadline had passed.  Now if a worker’s compensation claim is precluded by the statute of repose, a civil action can then be brought against the employer in state or federal court.  While a defendant employer would have various defenses available that would not be available in a worker’s compensation case, damages would not be capped or limited as they would be under the Acts.

Bath & Body Works, LLC settled a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The chain allegedly violated federal law by refusing to consider a reasonable accommodation requested by an employee with a disability and then constructively discharged her because of her disability. According to the lawsuit, a Bath & Body Works store refused to provide a reasonable accommodation to a lead sales associate with Type 1 diabetes suffering retinopathy. Jennifer Tvinnereim requested a larger monitor at the cash register to accommodate vision issues she had related to her diabetes, but she was simply sent home and had her hours reduced. Tvinnereim then contacted Bath & Body Works' corporate H.R.  Instead of providing the monitor, the store manager purchased a cheap, hand-held magnifying glass and presented it to Tvinnereim in front of her coworkers. The EEOC alleges that Ms. Tvinnereim was humiliated when she was told to hold the cheap magnifying glass in front of customers as she used the cash register monitor. Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires the employer to provide employees and applicants with a reasonable accommodation for a disability, unless it causes the employer an undue hardship. Even though the store actually tried accommodating the employee, it was not tailored to resolve the issue when it had the wherewithal to do so. "Employers must give serious consideration when an employee requests an accommodation for a disability," said Greg Gochanour, the regional attorney for the EEOC's Chicago District Office.

Stanley Black & Decker Inc., a global diversified industrial company, will pay $140,000 and furnish significant equitable relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, Stanley Black & Decker fired an inside sales representative for poor attendance in December 2016, even though she exceeded her sales goals and quotas. The employee had requested unpaid leave for medical appointments and treatment related to her cancer. The EEOC charged that the termination violated federal law because the employee’s absences were related to her cancer treatments or need for additional medical testing, and she had requested a reasonable accommodation. Moreover, the company’s inside sales attendance policy did not provide exceptions for people who need leave as an accommodation to their disabilities. Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and requires employers to provide a reasonable accommodation to individuals with disabilities, unless it would pose an undue hardship. In addition to the $140,000 in monetary relief to the employee, Stanley Black and Decker is prohibited from denying reasonable accommodations in the future and must update its inside sales attendance policy to provide for reasonable accommodations. This is a reminder to all employers that rigid attendance policies can run afoul of the ADA if they penalize employees taking leave as a reasonable accommodation for their disabilities. “We encourage employers to review their policies and procedures, including attendance policies, to ensure they provide for reasonable accommodations and equal employment opportunities for individuals with disabilities,” said EEOC Philadelphia District Director Jamie R. Williamson.

Governor Pritzker signed legislation that will gradually raise the minimum wage in Illinois to $15 an hour by 2025. The new law, known as the Lifting Up Illinois Working Families Act, is the first increase to the statewide minimum wage since 2010. The law takes effect on January 1, 2020 when the state’s current minimum wage of $8.25 will increase to $9.25. On July 1, 2020 that amount will increase again to $10 an hour. The minimum wage will then rise $1 an hour every January 1st through 2025 when the minimum wage will reach $15 an hour. Opponents of the law cited concerns of being unable to sustain small businesses in areas outside of Chicago where the cost of living is lower. To address those concerns, the legislation creates a tax credit to help smaller businesses offset the cost of the minimum wage hike. Businesses with 50 or fewer employees would be able to claim a tax credit for 25% of the cost in 2020. That tax credit would gradually decrease over the next several years, eventually phasing out in 2025. 

Beginning January 1, 2019, Illinois employers must reimburse employees for expenses incurred while performing their jobs. This new requirement is an amendment to the Illinois Wage Payment and Collection Act. 820 ILCS 115/9.5. To qualify for reimbursement under the amendment the employer must have “authorized or required” the employee to incur the expense; the expense request must be submitted within 30 calendar days (unless a longer period is provided for under the employer's expense reimbursement policy); and the employee must provide a signed, written statement in lieu of a receipt when the supporting documentation has been lost or does not exist. The amendment allows employers to establish their own written expense reimbursement policies specifying the amounts and requirements for any reimbursements. Employees are not entitled to reimbursement under the new law if they fail to comply with the employer’s established written expense reimbursement policy. Employers may not establish a policy that provides no employee expense reimbursement or provides minimal reimbursement. Employers may now need to reimburse employees for their work-related mileage (excluding the regular commute), employees’ personal cell phones (if supervisors, customers, or clients call those phones for work-related purposes) and home internet and other home office expenses that are necessary for an employee to work from home. Failure to comply with the new law can result in damages equal to the reimbursement amount and a 2% penalty for each month the expenses are not paid as well as attorneys’ fees incurred by the employee.

A federal judge ordered Denton County to pay $115,000 to a former county physician in damages stemming from a pay discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). Dr. Martha C. Storrie, a primary care clinician in the Denton County Public Health Department, was hired in October 2008. Her position involved providing medical treatment for Denton County residents in clinics operated by the county. In August 2015, Denton County hired a male physician to perform the same duties as Storrie. According to the lawsuit, the director of the health department started the newly hired male physician’s salary at $170,000. Storrie was paid $135,695 annually at the time. The EEOC alleged that the director did not act to fix the pay discrepancy even after Storrie brought it to his attention. This alleged conduct is a violation of the Equal Pay Act and Title VII of the Civil Rights Act of 1964, which prohibit unequal pay disparities based on gender as opposed to other factors such as qualifications and job duties. In addition to the damages Storrie received, the federal order also requires Denton County to implement a new written policy regarding the compensation policy for new physicians and provide training on equal pay for women.  “The EEOC is hopeful the County’s renewed efforts may also lead to other departments or areas within the County’s workforce being reviewed and considered periodically to determine equal opportunities are given to both men and women,” said EEOC Regional Attorney Robert Canino.

Effective August 24, 2018, a charging party has 300 days to file a discrimination charge alleging violations of the Illinois Human Rights Act.  The increase to 300 days now mirrors that of federal law, which requires parties to file discrimination charges before the EEOC within 300 days of an adverse act.  Also, a charging party may opt to bypass the Illinois Department of Human Rights (IDHR) investigative process and file a lawsuit in court without first having gone through an IDHR investigation.  To see all of the recent amendments click on the attached link to the legislation.      

Gov. Bruce Rauner signed legislation expanding the requirements for sex education courses for students in grades 6 through 12. The law now requires more education on sexual harassment in the workplace and on college campuses. The courses will also include a discussion on what constitutes sexual consent and what may be considered sexual harassment or sexual assault.

Beginning July 1, 2018, the minimum hourly wage for non-tipped employees will be $12.00 per hour (up from $11.00) and the hourly wage for tipped employees will be $6.25 per hour (up from $6.10). This increase is part of Mayor Emanuel’s Chicago Minimum Wage and Paid Sick Leave Ordinance, which was passed by the Chicago City Council in December 2014. All businesses operating within Chicago and/or employing persons working within Chicago are required to comply. The ordinance applies to all employers that maintain a business facility within the city of Chicago and/or are required to obtain a business license to operate in the city. All employees who perform at least two hours of work in the city of Chicago within any two-week period qualify for the increased rate. The ordinance covers all qualifying employees, including domestic employees, day laborers, and home health care workers. There are some exceptions: persons under 18 years of age, adults during the first 90 days of employment, disabled employees who have a state-approved lower wage rate, trainees taking part in a program, and employees working at a business with three or fewer employees (excluding domestic workers and day laborers). Chicago businesses are also required to post a Notice to Employers and Employees in each place of business beginning July 1, 2018. They must also include the Notice in each employee’s first paycheck following July 1st.

Three related Honolulu-based tour companies will pay $570,000 to settle a same-sex sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). In 2017, the EEOC filed its lawsuit in which several male employees claimed they were victims of egregious sexual harassment by Leo Malagon, the male president of Discovering Hidden Hawaii Tours. According to the lawsuit, Malagon allegedly harassed young males for more than a decade by making employment opportunities contingent upon engaging in sexual acts with him and performing unwanted sexual acts on male employees. When employees complained about the harassment, the company failed to take corrective action. Many of the employees were subsequently forced to quit because of the harassment or were retaliated against for reporting the harassment. This alleged conduct violates Title VII of the Civil Rights Act of 1964. In addition to paying $570,000 to a class of male employees, the settlement also requires that the alleged harasser have no further involvement in the operations and divest control of the companies. “This settlement sends an unequivocal message that accountability is required regardless of who the alleged harasser is, and no one is above the law under Title VII,” said Anna Park, regional attorney for the EEOC.

Professional Endodontics, P.C. will pay $47,000 to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's lawsuit charged that the company violated federal law by firing Karen Ruerat four days after her 65th birthday. According to the lawsuit, Ruerat was terminated pursuant to the company’s mandatory retirement policy which required all employees to retire at age 65. This alleged conduct violates the Age Discrimination in Employment Act (ADEA), which protects individuals who are 40 years of age or older from employment discrimination based on age. “Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge,” said Kenneth Bird, regional attorney for the EEOC.

The U.S. Equal Employment Opportunity Commission (EEOC) and The Coleman Company, Inc. have reached a voluntary conciliation agreement to resolve allegations of disability discrim­ination raised by a former employee. Following an investigation, the EEOC found that it was probable that Coleman violated the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 by conditioning employees’ receipt of severance pay on an overly broad severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC. The severance agreement also prohibited employees from accepting any relief obtained by the EEOC should the agency take further action. Coleman has agreed to hire an outside equal employment opportunity consultant to review its separation agreements and make sure they comply with the law. Courts generally deem contract provisions that preclude employees from filing charges or cooperating with the EEOC during an investigation as void against public policy. In fact, the district court of Colorado recently voided settlement agreement provisions that limited an employee’s right to participate in the EEOC’s lawsuit and accept a share of any financial or other relief obtained by the EEOC.

Hester Foods, Inc., the operator of a Kentucky Fried Chicken franchise in Georgia, violated federal law by discriminating against an employee because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged. The suit was filed on behalf of a former manager, Cynthia Dunson, who alleged the owner violated the Americans with Disabilities Act (ADA) when he fired Dunson after finding out she was taking medications prescribed by her doctor for bipolar disorder. According to the EEOC, the owner referred to the medicine in obscene terms and forced Dunson to destroy the pills by flushing them down the toilet. When Dunson later told the owner that she planned to continue taking the medications per her doctor’s orders, the owner told her not to return to work and fired her. In addition to paying $30,000 in damages to Dunson, the decree settling the lawsuit requires Hester Foods to create a handbook with policies that prohibit discrimination, provide annual equal opportunity employment training, and periodically report to the EEOC about complaints. “Employers are not allowed to force workers with disabilities to choose between their jobs and their health. Reasonable accommodation includes allowing workers to rely on their physicians, not on the opinions of the company managers,” said Antonette Sewell, regional attorney for the EEOC.

The Cheesecake Factory will pay $15,000 and implement changes to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of Oleg Ivanov, a deaf man who was hired by the restaurant as a dishwasher. The EEOC’s investigation found that The Cheesecake Factory denied Ivanov's requests for orientation training with either closed captioned video or an American Sign Language (ASL) interpreter. The company subsequently fired Ivanov for issues associated with his disability. This alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense. It is also illegal to punish an employee with a disability for requesting a reasonable accommodation. As part of a two-year consent decree, The Cheesecake Factory will pay $15,000 to Ivanov for back pay and compensatory damages. The company also agreed to provide closed captioning for the training and orientation videos that are required viewing for new hires.

XPO Last Mile, Inc., a logistics company, will pay $94,541 and furnish significant relief to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, XPO Last Mile’s operations manager offered an applicant a dispatcher/customer service position and told him his start date would be on October 3, 2016. When the applicant told the operations manager he could not start work then because he celebrated the Jewish holiday Rosh Hashanah on that date, the operations manager replied that he thought it would be acceptable for the applicant to start on October 4. Later that evening, however, the market vice president called and told the applicant that the company would not give him a religious accommodation. XPO Last Mile violated Title VII of the Civil Rights Act of 1964 when it revoked its offer of employment because the applicant was unable to work on Rosh Hashanah due to his religious beliefs. Title VII prohibits discrimination based on religion and requires employers to reasonably accommodate an applicant’s or employee’s sincerely held religious beliefs unless it would pose an undue hardship. In addition to the $94,541 in monetary relief to the applicant, the three-year consent decree resolving the suit enjoins XPO Last Mile from terminating employees based on religion or denying religious accommodations absent an undue hardship in the future. The company will implement and distribute to all employees a detailed policy against religious discrimination. The company also will provide training on unlawful employment discrimination, which will emphasize prohibiting religious discrim­ination and on providing religious accommodations.

The Appellate Court found that employees who work primarily outside of Illinois may sue their employer for unpaid wages under the Illinois Wage Payment and Collection Act in Illinois if the employer has sufficient contacts with Illinois.  In the attached Watts v. Addo Management LLC case, the plaintiffs were truck drivers who primarily drove trucks for the employer outside of Illinois.  The company argued that the plaintiffs' lawsuit should be dismissed because the plaintiffs failed to perform a certain amount of work in Illinois.  In rejecting the defendants' argument, the Appellate Court found that the Wage Act language that stated that the Act applied to all employers and employees in Illinois did not preclude the Wage Act from applying to those who perform work outside of Illinois for employers who have sufficient contacts with the State of Illinois.       

Silverado, a network of memory care, at-home care, and hospice care centers, has agreed to pay $80,000 to a former employee to settle a pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, Silverado violated Title VII of the Civil Rights Act of 1964 when it fired caregiver Shaquena Burton rather than accommodate her pregnancy-related medical restrictions by putting her on light duty assignment. “The Supreme Court made clear in Young v. United Parcel Service that if an employer provides light duty or other accommodations to a large proportion of nonpregnant workers while denying those opportunities to a large percentage of pregnant workers, the employer may be violating our nation's civil rights law prohibiting pregnancy discrimination,” said EEOC Regional Attorney Gregory M. Gochanour. “In this case, Silverado deprived Ms. Burton of an accommodation that it consistently offered to its nonpregnant workers.” The consent decree settling the suit prohibits future discrimination, prohibits retaliation, and provides that Silverado will pay $80,000 to Burton. Silverado must also post notices of the settlement, revise its anti-discrimination and record-keeping policies, report any requests for light duty or other job modifications periodically to the EEOC, and train its managers regarding those rights, obligations, and procedures.

Plastipak Packaging, Inc. will pay $90,000 and furnish other relief to resolve a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that Plastipak fired a female employee, who had been placed by a temporary agency, because she complained that one of its employees had sexually harassed her. Rather than investigating her complaint, Plastipak terminated her assignment. Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and retaliation against individuals who complain about discrimination or harassment. “All employees, including temporary workers, have the right to earn a living without being subjected to sexual advances and to exercise their right to oppose unlawful harassment without being fired," said EEOC Philadelphia Director Jamie R. Williamson. Companies need to ensure compliance with the law even for those workers who are employed by temporary agencies and not the place where the services are being performed.  Companies must treat temporary workers as regular employees for purposes of compliance with Title VII and other employment discrimination laws.  

Lowe’s Home Centers will pay $55,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's lawsuit says Lowe's failed or refused to accommodate a department manager who was disabled from a spinal cord injury that substantially limits the use of his right arm. In 2006, Lowe’s hired the employee as a customer service associate and promoted him to department manager in 2008. The company knew of the employee’s disability at the time of his promotion. He successfully worked as a department manager for six years. His disability prevented his use of certain power equipment but he delegated the task to an employee he supervised when necessary. In June 2015, Lowe’s stopped providing the employee with a reasonable accommodation and demoted him to a non-supervisory associate position. His hourly wage was cut by more than $4 per hour. According to the EEOC, the company's refusal to accommodate the department manager, a qualified individual with a disability, and subsequent decision to demote him to a lower-paying position violated the Americans with Disabilities Act (ADA). 

Greektown Casino LLC will pay $140,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, the casino unlawfully failed to provide a reasonable accommodation to an employee with a stress-anxiety disorder which lead to his discharge. The employee, a pit manager, exhausted his leave under the Family and Medical Leave Act (FMLA) following a stress-anxiety-related collapse on the job. He requested an additional four weeks of extended leave. Greektown denied the request and subsequently fired the employee. Such alleged conduct violates the Americans with Disabilities Act (ADA), which mandates that covered employers provide reasonable accommodations for the known disabilities of employees. Based on this case and the recent Pioneer Health Services case, it appears that the EEOC takes the position that leave beyond what FMLA requires can be a reasonable accommodation for a disability. Employers must bear in mind that denying a request for additional leave without considering whether it would be an undue hardship may result in potential liability under the ADA.

According to the lawsuit, Universal Protection Services, LP, dba Allied Universal Security Services, refused to accommodate the request of a Muslim security guard who sought a modification to the company’s grooming standard. The company fired him two days after he made the request. Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination and requires employers to make reasonable accommodations to employees’ sincerely held religious beliefs so long as this does not pose an undue hardship to the employer. In addition to paying the $90,000, Allied Universal agreed to comprehensive injunctive remedies including in-person training and monitoring to ensure that religious discrimination will not occur in the future.  As part of the settlement the company will retain an equal employment monitor; review and revise its religious accommodation policies and practices to comply with Title VII; provide annual EEO training for employees, supervisors, and managers who are involved in the religious accommodation process; post an employee notice; and undertake record keeping and reporting to the EEOC.

Volvo Group North America will pay $70,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, Volvo made a conditional job offer to a qualified applicant who was in a supervised medication-assisted drug treatment program. The applicant had explained his medically prescribed suboxone use at the time of his pre-employment physical. But when the applicant reported to work for the laborer position he was told he could not be hired because of his suboxone use. The EEOC said Volvo violated the Americans with Disabilities Act (ADA) when it failed to conduct an individualized assessment to determine what effect, if any, the suboxone would have on the applicant's ability to perform the job he was offered. "Employers should make hiring decisions based on the qualifications of an applicant, not his disability or participation in a medically supervised treatment program," said Jamie R. Williamson an EEOC District office director. Under the three-year consent decree resolving the suit, Volvo is required to distribute ADA policy information to its Hagerstown facility employees, provide ADA training, report to the EEOC how it handles any disability discrimination complaints, and post a notice of the settlement. The company will also amend its policy on post-offer medical and drug evaluations to explain what happens if an applicant's lawful use of prescription drugs poses a direct threat as defined by the ADA. 

Pioneer Health Services Inc. of Mississippi recently agreed to pay a settlement of $85,000 after a U.S. Equal Employment Opportunity Commission (EEOC) lawsuit alleged the company illegally fired an employee after she underwent liver transplant surgery. According to the 2012 lawsuit, Joyce Dumas was a social worker/therapist employed by Pioneer when she underwent liver transplant surgery. Pioneer granted Dumas’ requested leave for the surgery but denied her request for several additional weeks of leave to recover from her surgery.  Pioneer then fired Dumas for exhausting her company-approved leave and refused to hire her for an open position several months later. The EEOC said Pioneer allegedly violated the Americans with Disabilities Act (ADA) by refusing to engage in the ADA’s interactive process when the employee requested additional time off and ultimately failing to provide a reasonable accommodation. According to the settlement agreement, Pioneer must also provide training to its employees regarding ADA requirements and review its anti-discrimination policies and make any needed modifications. The company is also required to have an assigned senior company official with ADA training provide written recommendations to management before terminating an employee based on an actual, perceived or record of physical or mental impairment or for those who have exhausted their medical leave.

Aloha Auto Group, Ltd. will pay $30,000 and provide other relief to settle a lawsuit for retaliatory discrimination filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that Aloha Auto fired Daniel Young because he encouraged a group of Asian-American and Pacific Islander employees at the dealership to file hostile work environment complaints after a manager made offensive comments. Firing an employee for encouraging others to complain about a racist comment violates Title VII of the 1964 Civil Rights Act. “The EEOC takes retaliation seriously because it undermines the integrity of the federal process for reporting and preventing discrimination,” said Anna Park, one of the EEOC’s regional attorneys. The consent decree settling the suit requires Aloha Auto to pay the $30,000 in damages to Young and also requires the company to appoint an equal employment opportunity monitor to ensure compliance with anti-retaliation policies and procedures.

The U.S. Department of Labor (DOL) announced that it would adopt a new standard for determining whether interns and students are employees who must be paid wages under the Fair Labor Standards Act (FLSA). The DOL abandoned its previous method and instead adopted the “primary beneficiary” test used by federal courts. The new test has seven factors that provide a frame of reference to determine who is benefiting more from the intern-employer relationship. The seven factors are:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by an educational institution.

3. The extent to which the internship is tied to the intern's formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern's academic commitments by corresponding to the academic calendar.

5. The extent to which the internship's duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern's work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job after the internship concludes.

The advantage of the primary beneficiary test is its flexibility. The test does not require that each of the seven factors be met and no single factor is determinative. Employers should review how the primary beneficiary test applies to interns at their organizations and make sure that any unpaid intern programs primarily benefit their interns and not the company.  Otherwise, the interns should be paid.

Governor Bruce Rauner recently signed into law Public Act 100-0554 which provides several measures to combat sexual harassment in the state legislature. First, all employers of lobbyists as well as government employers are required to adopt a policy prohibiting sexual harassment. The legislature requires lobbyist employers to follow many of the same requirements as state agencies in preventing sexual harassment. Beginning January 1, 2018, all lobbyist employers and local governmental entities must have a written sexual harassment policy in place. The law also sets forth new minimum standards for all policies. A sexual harassment policy must include a prohibition on sexual harassment, details on how to report sexual harassment allegations, a prohibition on retaliation for reporting sexual harassment allegations, and the consequences of violating the prohibition on sexual harassment or knowingly making a false report.  Additionally, Illinois lobbyists are also required to undergo annual sexual harassment training. Finally, the new law amends the Illinois Human Rights Act to require the Illinois Department of Human Rights to establish and operate a sexual harassment hotline by February 16, 2018.  The hotline is intended as a means for individuals to anonymously report sexual harassment in both public and private places of employment. 

The Equal Employment Opportunity Commission settled a lawsuit against Centurion Products LLC for same-sex sexual harassment for $125,000.  According to the suit, Centurion violated federal law by maintaining a sexually hostile work environment at its plant.  Allegedly, a male floor supervisor and other male employees used explicit sexual innuendos, insults, and engaged in unwelcome sexual touching of male employees. The EEOC claims that not only did Centurion fail to respond to complaints in a timely and proper manner, but it terminated an employee in retaliation for lodging a complaint about such harassment. While it denied the allegations, Centurion admitted that it failed to maintain a written policy or procedure to prevent and address sexual harassment in the workplace. 

Recently, the Illinois Human Rights Act (IHRA) was amended to emphasize coverage with respect to employer dress and grooming policies. The amendment, known as the “Religious Garb Law,” provides that an employer cannot require a person to violate or forego a sincerely held practice of one’s religion, including the wearing of any attire (hijab, yarmulkes, crosses, etc.) or facial hair. However, the law indicates that nothing prohibits an employer from enacting a dress code or grooming policy that may include restrictions on attire, clothing, or facial hair to maintain workplace safety or food sanitation. Moreover, an employer may not have to accommodate an employee if, after engaging in a bona fide effort, the employer can demonstrate that the accommodation would result in an undue hardship to the employer’s business.

United Parcel Service Inc. has agreed to pay $2 million to nearly 90 current and former workers to settle claims that it discriminated against disabled employees. In 2009 the EEOC filed a lawsuit in Chicago federal court alleging that UPS violated the Americans with Disabilities Act when it failed to provide employees with reasonable accommodations and maintained an "inflexible" leave policy that automatically fired employees when they reached 12 months of leave, without engaging in an interactive process. In addition to the $2 million, UPS agreed to update its policies on reasonable accommodation, improve its implementation of those policies, conduct training and provide the EEOC periodic reports on the status of every accommodation request for the next three years.

In an August 7, 2017 First District Illinois Appellate Court case, the Court affirmed a circuit court order dismissing a lawsuit brought by an insurance and financial products company against its former employee for allegedly breaching the non-competition provisions of an employment agreement.  After the former employee went to work for a competitor, he sent generic invitations to connect on LinkedIn to former co-workers.  His LinkedIn page contained information about job opportunities at his current employer.  The former employer argued that the exchange amounted to using LinkedIn as a recruitment tool in breach of the parties’ agreement not to solicit employees.  In rejecting the breach of contract claim, the Court explained that one had to look at the content and substance of the communication.  In the matter at bar, the invitations to connect were sent through generic emails that invited the recipients to form a professional connection.  The generic emails did not discuss the former employer, the current employer, or suggest that the recipient view any specific item on the profile page.  Moreover, there was no solicitation to leave their current place of employment to join the competitor.  Thus, the mere post of a job opening on his public LinkedIn page did not constitute an inducement or solicitation in violation of his noncompete agreement. 

A federal appeals court ruled 8 to 3 that a former adjunct professor who is a lesbian may go forward in her lawsuit against Ivy Tech Community College for sex discrimination on account of her sexual orientation. In August 2014, Kimberly Hively sued Ivy Tech for discrimination based on sex after the college would not grant her full-time employment and ultimately terminated her, which she believed was based on her sexual orientation.  For the first time, the 7th Circuit has ruled that discrimination based on one’s sexual orientation is encompassed within Title VII of the Civil Rights Act of 1964’s ban on sex discrimination.  The court entered a narrow decision based on the facts of Hively and did not expand its scope to other situations.  Thus, the court narrowly held  that a person who alleges employment discrimination on the basis of that person’s sexual orientation has put forth a case of sex discrimination in the context of Title VII only.

The EEOC filed a federal lawsuit on behalf of a former Costco employee who alleged that her employer did not do enough to protect her from a stalking customer while she worked.  Following the denial of summary judgment, a federal jury found unanimously against Costco and awarded the employee $250,000 in compensatory damages.  The employee alleged that the customer improperly touched her, followed her in the store, and made comments to her.  While Costco eventually revoked the customer's membership, it was only after the employee filed a police report, obtained an order of protection, and went out on a medical leave.  This case is a signal to business owners to pay closer attention to their employees when they complain about customers amidst concerns of losing business.     

Effective January 1, 2017, the Illinois Right to Privacy in the Workplace Act was amended to broaden its protections to all online accounts used by an employee primarily for the employee’s personal use.  An employer cannot require an employee to join an online account established by the employer, require that the employee add the employer as a contact to the employee’s online account or to a group affiliated with the employee’s online account, or provide a username or password to any personal online account except in limited circumstances.  However, the amendments do not prohibit activity concerning business or professional online accounts created at the direction of the employer or paid for by the employer in connection with the employment.  

On November 22, 2016 a Texas judge entered an emergency preliminary injunction on a nationwide basis enjoining the Department of Labor's Final Rule from going into effect December 1, 2016.  The Final Rule increased the minimum salary level for exempt employees from $455 per week ($23,666 annually) to $921 per week ($47,892 annually).  Until further notice the salary test under the Fair Labor Standards Act will remain at $455 per week.     

Effective January 21, 2017, U.S. Citizenship and Immigration Services will require all employers to use its updated version of the I-9 form to verify the identity and employment authorization of individuals hired for employment in the United States.  This revised edition will expire August 31, 2019.  One of the revised features of the form is the "Other Last Names Used" section, which replaces the "Other Names Used" section.  This is but one of several changes to the I-9 form.  Feel free to click above to review the I-9 form.        

On October 5, 2016, the Cook County Board of Commissioners established employer paid sick leave similar to the ordinance passed by the City of Chicago in June, 2016.  Under the County's ordinance a covered employee who works at least 80 hours for an employer within any 120 day period shall be eligible for paid sick leave. The Cook County Ordinance will become effective July 1, 2017.   

On August 19, 2016, Governor Bruce Rauner signed into law the Illinois Freedom to Work Act (the Act). Effective January 1, 2017, the Act bans private sector employers from entering into non-compete agreements with “low-wage employees” and declares such agreements to be “illegal and void.” The Act defines a “low-wage employee” as any employee who earns the applicable federal, state or local hourly minimum wage or $13.00 per hour whichever is greater. Specifically, the Act prohibits employers from entering into agreements with low-wage employees that would restrict these workers from performing: (1) any work for another employer for a specified period of time; (2) any work in a specified geographical area; or (3) work for another employer that is similar to such low-wage employee’s work for the employer included as a party to the agreement. The Act only restricts non-competition clauses. It does not prohibit non-disclosure or other confidentiality agreements, nor does it appear to apply to non-solicitation provisions. 

Beginning July 1, 2017, covered employers will be required to have a sick leave policy that at a minimum allows covered employees to accrue and use up to five earned sick days over the course of one year. Sick time will be earned at a rate of one hour for every 40 hours worked. Employees will be able to roll over up to 20 hours of unused sick time to the following year. Employers will not be required to pay out unused sick time. Any covered employee who works at least 80 hours within any 120-day period shall be eligible for paid sick leave. A "covered employee" is an employee who performs at least two hours of work for his or her employer in any two-week period while physically inside the geographic boundaries of Chicago.

On March 17, 2016, the City of Chicago updated the Residential Landlord and Tenant Ordinance Summary (required by MCC Section 5-12-170) to add a reference to Section 5-12-101 (Bed Bugs-Education). The addition states that a landlord shall provide the tenant with the informational brochure on bed bug prevention and treatment prepared by the department of health pursuant to Section 7-28-860.  As of June 1, 2016, this updated Summary must be attached to every written rental agreement and also upon the initial offering for renewal.

President Obama and Secretary Perez announced the publication of the Department of Labor’s final rule updating the overtime regulations. Specifically, the Final Rule sets that employers must pay overtime for work beyond 40 hours in a week to all workers earning up to $913 per week or $47,476 annually. It will also automatically update the salary and compensation levels every three years, to meet the 40th percentile of full-time salaried workers in the lowest-wage census region (currently the South). The Department of Labor estimates that 4.2 million workers would newly qualify for the added pay, with 35% of full-time salaried workers expected to fall below the threshold under the new rule. The effective date of the final rule is December 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) will be effective on that date. Future automatic updates to that threshold will occur every three years, beginning on January 1, 2020.

U.S. District Court Judge Robert W. Gettleman declined to rule that a non-solicitation agreement was invalid because the former employee had not worked for the plaintiff employer for two years. The defendant was hired in April 2012 and signed employment agreements containing a one year non-solicitation clause as to customers and employees. Defendant resigned in April 2013, joined a competitor, and solicited his co-workers to join him before and after he left Plaintiff’s employment. Plaintiff sued to enforce the employment agreements, seeking damages. Defendant moved for summary judgment arguing that two years of employment is required for consideration to be adequate to enforce restrictive employment covenants. In denying summary judgment, the court reasoned that the consideration was adequate since the plaintiff sought damages only and not equitable relief.

The Illinois Appellate Court upheld the Circuit Court's determination that the non- compete, non-solicitation and confidentiality provisions in an employment agreement were unreasonable as a matter of law and affirmed the refusal to judicially modify the restrictive covenants. The opinion applies the Reliable Fire “rule of reasonableness test.”

An August, 2015 Illinois Appellate Court decision has confirmed that a Chicago tenant who successfully prosecutes a counterclaim in an eviction action for damages under Chicago’s Residential Landlord and Tenant Ordinance (RLTO) is entitled to an award for the tenant’s attorney fees. The landlord filed an eviction and sought back rent. The tenants counterclaimed, alleging that the place had bugs, etc. The tenants prevailed on one of the counts in their counterclaim and sought attorneys’ fees and costs. The court agreed that they were permitted to seek fees against their landlord on the counterclaim in which they prevailed.

The U.S. Labor Department issued a memo that is designed to cut back on what it calls “worker misclassification.” The memo includes a set of standards for employers to follow to decide who is an employee and who is an independent contractor. The Labor Department is concerned with misclassification because non-employees are not covered by various workplace regulations such as overtime, occupational safety, unemployment insurance, etc.

The Board offers employers new guidance on how to craft employee handbook rules that do not run afoul of the National Labor Relations Act.

All private, non-sectarian employers in Illinois, regardless of the number of employees, are covered by the pregnancy amendments to the IHRA. The amendments to the IHRA establish pregnancy as a legally protected class and define the term "pregnancy" broadly to include: "pregnancy, childbirth, or medical or common conditions related to pregnancy and childbirth." The amendments apply to employees and applicants who are expecting and who recently gave birth.