Evaluating Layoff Decision Criteria in the Wake of Bostock

Contributed by Steven Jados, July 29, 2020

Gavel and scales of justice.

Layoffs have become a reality for many businesses and employees in recent months, and this unfortunate trend seems likely to continue as we head toward the fall and winter months. The U.S. Supreme Court’s recent decision in Bostock v. Clayton County highlights additional considerations—beyond simply protecting LGBT employees—that businesses must factor into decisions regarding which employees to layoff, and which to retain.

As we previously wrote, the Supreme Court’s Bostock decision essentially held that the anti-discrimination protections of Title VII of the Civil Rights Act of 1964 extend to LGBTQ employees. But the way that decision was reached—particularly its focus on how discrimination affects individuals, as opposed to broader groups—is instructive in terms of analyzing whether termination decisions, in the context of layoffs or otherwise, are unlawfully discriminatory.  

The Court gave this hypothetical:  “Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing ‘because of sex’ if the employer would have tolerated the same allegiance in a male employee.” That example illustrates, among other things, that simple binary analyses may not be sufficient to determine whether employment decisions are discriminatory—and that combinations of protected characteristics (sex, race, religion, etc.) and non-protected characteristics (affinity for a certain sports team) can be the basis for viable claims of unlawful discrimination. 

With that in mind, employers attempting to analyze whether layoff criteria are discriminatory cannot simply compare men to women, or older employees to younger employees.  Instead, subgroups and intersections must also be considered.  Employers must ask—for example—whether layoff decisions unfairly affect women over a certain age as compared to men of that age, or whether layoff decisions unfairly affect employees of one race who are unmarried as compared to employees of a different race who are unmarried. 

Simply put, in the wake of Bostock, employers should conduct a deeper analysis than they previously might have in order to determine whether termination decisions implicate the intersection of protected and non-protected characteristics—or multiple protected characteristics. And questions regarding layoff decision criteria and concerns about potential liability should be directed to experienced legal counsel.  

I Don’t Want to Wear a Mask…Part 2: How Businesses Can Enforce the Policy Requirement

Contributed by Michael Wong, July 24, 2020

Vector attention sign, please wear face mask

With COVID-19 cases surging in numbers, the legal implications of face mask policies for businesses have taken center stage again. 

First a quick recap, from my prior article, ADA Implications, I Don’t Want To Wear a Mask…:

  • Businesses can require employees to wear masks at work and customers to wear face masks when coming into businesses;
  • Businesses can refuse entry or ask customers to leave if they refuse to wear a face mask;
  • For both employees and customers that say they cannot wear a face mask due to a disability or medical condition, the business must engage in the ADA interactive process. The interactive process is different for employees than it is for customers.
    • For employees, the business can request medical documentation. 
    • For customers, the business should not ask for medical documentation.  Rather, the business may ask limited questions such as whether the individual has a disability and whether the disability restricts him or her from wearing a mask.
  • For both employees and customers, a business should try to provide a reasonable accommodation, but may take into consideration safety issues/concerns and whether the requested accommodation is an undue burden.

Next, what other legal concerns are there for a business that requires face masks?  The major issue facing many businesses is how to safely enforce a mask policy. As we have seen from viral videos, asking a customer to put on a face mask can lead to threats of legal action, verbal confrontations and even physical altercations or violence. If an employee is injured during a confrontation with a customer, it will likely qualify as a workers’ compensation claim. Similarly, if the customer threatens to spit or cough on the employee and then, within the next 14 days, the employee has symptoms of or tests positive for COVID-19, there is the possibility that the employee’s illness could qualify as a workers’ compensation injury if they can show it resulted from that interaction. Alternatively, if a customer is hurt, there is the potential for the customer to pursue a personal injury case.  Finally, there is the risk of a discrimination claim, if the business selectively enforces its mask policy based upon a protected status, such as race, age, national origin, etc., or does not take steps to address a customer whose behavior includes making discriminatory or harassing comments.

The best way to limit your exposure to these types of claims is to train employees on your policy, how to communicate your policy and how to address these situations to limit the risk of someone being hurt. The training should address the following:

  • The business’ policy on face masks – including your posters and where they are located.
  • Understanding business’ ADA obligations – e.g. questions that customers may be asked regarding their reason for not wearing a mask, how to respond if a customer has a disability and understanding that posters/flyers alleging that the ADA prohibits businesses from requiring face masks are false and not issued by the EEOC or Department of Justice.
  • Determine how the business will enforce the policy – i.e. whether an employee will monitor entrances, whether only certain employees or members of management should be involved in addressing compliance issues with customers, etc.
  • Address what employees should do if a customer comes in without a mask – e.g. notify management and other employees before addressing the issue with the customer.
  • Remind all employees to be polite and respectful at all times when discussing the mask requirement with customers, even if the customer gets argumentative.
  • Methods to avoid conflict – e.g. asking the customer to discuss the issue outside of the store, and not raising your voice even if the customer does.
  • Methods to de-escalate conflicts – e.g. being polite, even if the customer is not, having more than one employee present, so if the customer starts verbally or physically threatening one employee, that employee may step back and the other employee can redirect the customer to try to de-escalate the situation.
  • Alternative methods of providing services/products to a customer who has a disability and cannot wear a mask – e.g. employee gathers products and brings to customer outside of the store, etc.
  • When and how to contact law enforcement to address compliance issues.
  • Understand the proper way to document any incidents and preserve evidence, including incident forms, witness statements, taking pictures of where incidents occurred, and if applicable, securing security videos of incidents.

The list above is not exhaustive—and businesses with additional questions regarding mask policy enforcement should contact legal counsel to discuss how best to resolve such questions.

Save the Date! Complimentary Webcast July 30th: Back to School: What Employers Need to Know Related to COVID-19 and Childcare for the Upcoming School Year

As school districts announce their plans to start the school year on modified schedules with continued digital learning, employers need to anticipate the accommodations parents will request and consider leave policies.

Join Allison Sues and John Hayes on Thursday, July 30, 2020 at 10AM CT as they discuss leave eligibility under the Families First Coronavirus Response Act (FFCRA), employee accommodations, and more. Key highlights include:

  • An overview of the different approaches to school openings by states, local governments, and school districts to try to reduce the spread of COVID-19 in the fall
  • Review of employee eligibility for FFCRA paid FMLA leave
  • Practical tips for employers accommodating employees who have school aged children
  • Updates on any new or potential legislation

NLRB Makes It Easier For Employers to Take Action Against Offensive Employee Conduct – Even in the Course of Protected Activity

Contributed by Beverly Alfon, July 22, 2020

gavel with Labor Law sign

In a decision issued yesterday, General Motors LLC, 369 NLRB No. 12 (2020) , the National Labor Relations Board declared that “[it] will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.”

Prior to yesterday’s decision, employees who engaged in obscene, racist, and sexually harassing speech in the course of activity otherwise protected by the NLRA, were protected by various setting-specific standards that provided leeway to employees to engage in such conduct depending on the setting (i.e., encounters with management, postings on social media, and conduct on the picket line). The Board noted that while these standards were put into place to allow for some impulsive behavior in the course of protected activity, they did not require any showing of discrimination or antiunion motivation – “mistakenly assum[ing] discrimination and antiunion motivation by treating union activity as inseparable from related abusive conduct.” The Board specifically recognized the tension between these setting-specific standards and antidiscrimination laws. 

Going forward, the applicable standard for all cases involving offensive or abusive conduct in the course of otherwise-protected activity, regardless of setting, will now be decided under the well-established Wright Line standard. Under Wright Line, the NLRB General Counsel must first prove that the employee’s protected activity was a motivating factor in the discipline. If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct. 

The Board reasoned that the application of Wright Line in this context will ensure that employees’ Section 7 rights (referring to the section of the Act that gives employees the right to form, join or assist labor organizations, bargain collectively through a representative of their own choosing, and engage in other protected group activity for mutual aid or protection, and to refrain from any or all of these activities) will continue to be protected, while also “honor[ing] the employer’s right to maintain order and respect.” This is undoubtedly a positive decision for employers who are faced with offensive and abusive employee conduct in the course of activity protected by the NLRA.

Want to learn more about how to maintain order and respect in the workplace in the face of political speech and conduct by employees? Check out our upcoming complimentary webcast on Wednesday, August 19th. We will be discussing how to identify conduct that is severe enough to trigger lawful discipline and what legal parameters are at play.

Can Employers Consider Salary History Under The Equal Pay Act? Supreme Court Declines to Weigh In

Contributed by Allison P. Sues, July 15, 2020

a see through piggy bank with coins

The Supreme Court declined to review a Ninth Circuit decision that would have answered a question currently splitting the circuits: may an employer consider employees’ salary histories in setting their current pay without violating the Equal Pay Act (EPA)?  As discussed in our previous blog article on January 14, 2019, the EPA prohibits employers from paying wages to employees of one sex less than employees of the other sex for equal work. The EPA holds employers strictly liable for differential pay, regardless of whether the employer had discriminatory intent, unless the employer can show that the difference in pay is based on one of four statutory exemptions. Employers may pay employees differently based on a seniority system, merit system, quality or quantity of production measurements, or a fourth catch-all factor listed as “a differential based on any other factor other than sex.” Circuit courts are currently split on whether this fourth exemption allows an employer to set pay based on an employee’s salary history. The Ninth Circuit was the first circuit to expressly prohibit employers’ use of a prior salary defense to an EPA claim, stating that allowing employers to set current pay based on salary history would perpetuate the very gender-based pay inequalities the EPA set out to address.

On July 2, 2020, the U.S. Supreme Court announced it would not review the Ninth Circuit’s decision in Rizo v. Yovino. In Rizo, the Ninth Circuit held that an employer cannot consider an employee’s prior salary in setting his or her current salary without running afoul of the EPA. The Court held that an employer can only justify a pay differential based on a factor other than sex if that factor was job-related. It further held that an employee’s prior salary is not job-related to the “employee’s present position.” The Court acknowledged that “prior pay could be viewed as a proxy for job-related factors such as education, skills, or experience related to an employee’s prior job,” but concluded that prior pay in and of itself is “not a factor related to the work an employee is currently performing.”

Had the Supreme Court reviewed Rizo, it would have offered some much-needed clarity to the various and conflicting opinions of the federal appeals courts on this issue. While the Ninth Circuit now prohibits consideration of pay history under the EPA, the Seventh Circuit has ruled the opposite by holding that employers may consider prior salary history in setting current pay. The Second, Eighth, Tenth, and Eleventh Circuits have issued rulings landings somewhere between these two extremes. For example, the Second Circuit allows employers to consider salary history if they can show a bona fide business reason to do so and the Tenth and Eleventh Circuits allow employers to consider salary history if it is not the sole consideration.   

While courts grapple with whether the EPA prohibits employers from considering prior salaries, many legislatures are addressing the issue from another angle. Attempting to ameliorate the gender pay gap, states (including California, Massachusetts, Delaware, Oregon, Illinois, New York, New Jersey, Vermont, Washington, Maine and Colorado) and cities (including New York City, San Francisco, Cincinnati, Philadelphia, and New Orleans) have enacted legislation prohibiting employers from asking employees about their prior salaries or limiting an employer’s use of salary history during the hiring process. 

U.S. Supreme Court Extends the “Ministerial Exception” to Teachers at Religious Elementary Schools

Contributed by John Hayes, July 14, 2020

Scales of Justice, Weight Scale, Balance.

On July 8, 2020 the United States Supreme Court ruled that the U.S. civil rights laws barring discrimination on the job do not apply to most lay teachers at religious elementary schools. The decision extends earlier Supreme Court rulings that shielded religious organizations from employment-discrimination claims by ministers, called the “ministerial exception.” This principle, which courts derived from the First Amendment, bars the government from telling a religious institution whom to choose as its faith leaders. Respecting that principle sometimes requires the courts to stay out of employment disputes when the employer is a religious institution, even when a worker claims unlawful discrimination. 

The decision consolidated two cases, each alleging discrimination by elementary school teachers at religious schools in California. In the first case, plaintiff Agnes Morrissey-Berru was seeking to sue Our Lady of Guadalupe School in Los Angeles for age discrimination. The other case accused St. James School in Torrance, California, of discriminating on the basis of disability when it fired Kristen Biel after she had undergone chemotherapy. The schools both said the women had important religious duties, including teaching classes about Catholicism, leading prayers and participating in mass with the students, thus bringing them inside the ministerial exception.

The vote was 7 to 2, with Justice Samuel Alito writing the majority opinion. Justice Sonia Sotomayor wrote the dissent, joined by Justice Ruth Bader Ginsburg. In agreeing with the schools that the two teachers were “ministers” qualifying for the exception, Justice Alito wrote:

“There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility.

As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith.

In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.”

Ultimately, the Supreme Court instructed courts to consider all relevant circumstances to determine whether each position implicates the ministerial exception’s fundamental purpose. By refusing to adopt a rigid approach, the Supreme Court has allowed for a broader interpretation of the exception beyond employees who hold the title of minister.

The decision effectively expands the ministerial exception to include teachers who lacked religious titles and training, potentially stripping fair employment protections from many of the roughly 149,000 teachers at religious elementary schools, where they frequently teach religion alongside other subjects.

The ruling comes weeks after the court ruled that gay and transgender workers can sue for job discrimination under federal law. This decision underscores an important qualification to that ruling, giving faith-based groups broader discretion to disregard certain civil rights laws, including those extending LGBTQ protections.

Although the case involved only two elementary school teachers, given the broad language of the decision—that the absence of a “minister” position title and of specific religious training does not mean the exception will not apply—and the deference the Court gave to the religious employers’ judgment and assessment of the positions, it will likely have sweeping implications for the millions of employees working in the U.S. at religious institutions.

Employees Entitled to Leave Because Camp is Closed? Yes.

Contributed by Suzannah Wilson Overholt, July 2, 2020

text summer camp written with chalk on a chalkboard

After schools and day cares closed in the spring due to the pandemic, employers and parents alike were hopeful that summer would bring a return to normalcy – especially in the form of camp for kids. Alas, that hope has not become a reality as many states have either delayed or prohibited the opening of camps. What are employers and working parents to do?

On June 26, the federal Department of Labor issued guidance stating that, under certain circumstances, an employee whose child’s day camp is closed as a result of COVID-19 may take leave under the Families First Coronavirus Response Act (FFCRA).  

As a reminder, the FFCRA requires employers with fewer than 500 employees to provide eligible employees with up to twelve weeks of expanded family and medical leave if the employee is unable to work or telework due to a need to care for his or her child whose place of care is closed due to COVID-19 related reasons. (You can read more about the FFCRA’s provisions in our earlier blog). A “place of care” includes summer camps and summer enrichment programs. 29 C.F.R. § 826.10(a). Therefore, an employee may request emergency FFCRA family leave to care for his or her child based on the closure of a summer camp or other summer program.  

An employee who requests leave on this basis is subject to the general requirements for requesting emergency family leave under the FFCRA and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. 29 C.F.R. § 826.100(e)(2). The requirement to name a specific summer camp or program may be satisfied if the child applied to or was enrolled in the summer camp or program before it closed or attended the camp or program in prior summers and was eligible to attend again.  

The request for leave due to the closure of a camp or summer program must be based on planned enrollment and is not appropriate if the child has never attended the camp/program in question or any other camp/program, unless there were some indication that the child would have attended had the camp/program not closed in response to COVID-19. Actual enrollment in the camp/program is not required to qualify for leave. Factors to consider include: submission of an application or deposit before the camp’s closure; prior attendance in the camp/program; current eligibility for the camp/program; and being accepted to a waitlist pending the reopening of the camp/program. 

Employers should also consider that a child who met the age requirement for a summer camp for the first time in 2020 could not have attended the camp in prior years. Similarly, a child who recently moved to a new area may have to attend a different camp/program from prior years. Finally, parents may have delayed making arrangements for summer due to the pandemic. 

The status of summer camps is yet another area employers should monitor as their states re-open.

COVID-19 “Close Contacts” Just Got a Little Closer

Contributed by Suzannah Wilson Overholt, July 1, 2020

Social distancing, black and white figures with face masks

As has come to be expected, the guidance regarding COVID-19 has changed again. This time the CDC narrowed the definition of who constitutes a “close contact” for purposes of tracing people with potential exposure to someone who has COVID-19.

While a “close contact” is still defined as someone who was within 6 feet of an infected person for at least 15 minutes, what has changed is when the exposure occurred during the ill person’s sickness. The relevant time is now from two days before illness onset (or, for asymptomatic patients, two days prior to specimen collection) until the time the patient is isolated. 

Before this change, the relevant period was from two days before symptom onset until the ill person met the criteria for discontinuing home isolation, which requires the person to be symptom free for at least three days and for at least 10 days to pass from symptom onset or, if someone is being tested, to be symptom free for three days and to have two negative tests at least 24 hours apart.

The new definition effectively reduces the time frame for identifying close contacts to as little as a few days – two days before the symptoms started to the start of home isolation could occur in three days. This change should be helpful to anyone who is faced with the task of identifying close contacts of individuals with COVID-19 – including employers, contact tracers, and public health officials. Their jobs just got a bit easier since there is now a smaller field of contacts to consider. The guidance also makes sense since, presumably, the ill person should not have any contacts (outside household members) once home isolation begins.

The CDC’s guidance continues to remind us that the 15 minute standard is not necessarily a rigid test. Factors to consider include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether either the ill person or contact was wearing an N95 respirator (which reduces the risk of exposure). Note that using a fabric face covering should not be considered as reducing risk.

Different criteria apply in healthcare settings, where a prolonged exposure is defined as any exposure greater than 15 minutes because the contact is someone who is ill. While the CDC recognizes that brief interactions are less likely to result in transmission, symptoms and the type of interaction (e.g., did the person cough directly into the face of the individual) are important.

Employers must still be vigilant about identifying close contacts of any employees who have COVID-19. If you have not established an internal policy for doing so, now is the time.

REMINDER/IMPORTANT WARNING: July 1 Minimum Wage Increases in Illinois, Cook County and the City of Chicago…and Major Expansion of What Employers are Covered by Chicago’s Minimum Wage and Paid Sick Leave Ordinance

Contributed by Michael Wong and Sara Zorich, June 26, 2020

It’s that time of year and even a pandemic will not stop Illinois, Cook County and the City of Chicago from increasing their minimum wages on July 1, 2020 as follows:

Non-Tipped EmployeesTipped Employees
(Claiming the Tip Credit)
Illinois (all employers)$10.00 per hour$6.00 per hour
Cook County (employers in
municipalities that did not opt-out)
$13.00 per hour$6.00 per hour*
*Technically, the Cook County Minimum Wage Ordinance for tipped employees only increases to $5.30. However, since that is less than the new State minimum wage for tipped employees of $6.00, following the Cook County Minimum Wage Ordinance for tipped employees would be a violation of the Illinois Minimum Wage Law.

The July 1 change for the City of Chicago includes significant changes and new nuances that employers must be aware of, including different wage rates based on number and age of employees.

Large Employers
(21 or more employees)
Small Employers
(4 to 21 Employees; and Employers with 0 to 21 Domestic Workers)
Youth Workers
(Under 18, subsidized temporary youth employment program or transitional employment program)
Chicago$14.00 per hour$13.50 per hour$10.00 per hour
(same as State Min Wage)
Tipped Workers (Claiming the Tip Credit):Large EmployersSmall EmployersYouth Employers
Chicago$8.40 per hour$8.10$6.00
O’Hare and Midway Airport Certified Service Providers: $14.15 for non-tipped employees and $7.65 for tipped employees.

WARNING MAJOR CHANGES

However, the biggest change that employers must take note of does NOT pertain to the wage rate, but WHO will be subject to the City of Chicago’s Minimum Wage and Paid Sick Leave Ordinances. The Amendment to the Chicago Minimum Wage and Paid Sick Leave ordinance passed on November 11, 2019, redefines and expands what employers are covered. Currently, only employers who (1) maintain a business facility within the geographic boundaries of the city and/or (2) are subject to one or more of the City’s license requirements in Title 4 of the Chicago Code are subject to Chicago’s minimum wage and paid sick leave ordinances.

Chicago Minimum Wage

The City’s revisions that go into effect July 1 delete the requirement that an employer must have a business facility within the geographic boundaries of the City and/or be subject to the City’s license requirements to be covered. After July 1, the new definition for employer in the Chicago Minimum Wage and Paid Sick Leave ordinances will be “a person who gainfully employees at least one employee.”

Under this change, it can be interpreted that any employer who has an employee who performs at least two (2) hours of work within the geographic boundaries of the City, during any particular two-week period, must pay that employee the Chicago minimum wage for the time spent working within the City of Chicago.

Chicago Paid Sick Leave

Furthermore, the Chicago Paid Sick Leave ordinance uses the SAME definition for “Employer” as the Chicago Minimum Wage ordinance. This means that ANY employer who has ANY employee perform at least two (2) hours of work within the geographic boundaries of the City, during any particular two-week period, must document and record the amount of paid sick leave accrued by that employee for the time spent working in the City!

As an example of the potentially drastic nature of this change is this scenario: a Texas business sends its non-exempt employee to New York. The employee’s flight has a 2 ½ hour layover at O’Hare (O’Hare and Midway are both within the geographic boundaries of the City of Chicago). Technically under Chicago’s Paid Sick leave ordinance, the Texas business would have to record the amount of paid sick leave that the employee accrued during the 2 ½ hours that the employee was “working” in Chicago.

Any employer who has employees going into the City of Chicago, now MUST review and understand their obligations and whether they are subject to the Chicago Minimum Wage and Paid Sick leave ordinances after July 1.

Posters

For employers that are subject to the Cook County or Chicago minimum wage and paid sick leave ordinances, you will need to get the most up-to-date required poster, which can be found on the City of Chicago webpages for Minimum Wage and Paid Sick Leave in English or Spanish. Additionally, under Chicago’s new rules, employers will have to provide written notice each year with the first paycheck after July 1, whether by paper or electronic means.

The Cook County website has posters for Minimum Wage and Sick Leave that are only in English. Illinois has not updated its minimum wage poster (yet).

Employers that are unsure whether they must comply, what they must do to comply or that fail to implement compliant policies, including tracking sick leave accrual or carryover, should discuss options with employment counsel to mitigate exposure and minimize risk.

Illinois Supreme Court Rules Public Employers Can Keep Disciplinary Records Longer Than Union Contracts Provide

Contributed by Carlos Arévalo, June 24, 2020

3d illustration of scales of justice and gavel on orange background

On June 18, 2020, the Illinois Supreme Court ruled that enforcement of a union contract provision mandating the destruction of disciplinary records was against Illinois’ public policy of preserving and retaining public records. The decision settles an ongoing dispute between the City of Chicago and the Fraternal Order of Police, Chicago Lodge No. 7 (FOP) about the disposition of disciplinary records. 

Since 1981, the parties’ contract has included a requirement that disciplinary records be destroyed after five years. Things changed in 1991 when a federal court in a civil rights lawsuit ordered the city to cease destroying complaint register files. The city subsequently attempted to negotiate contract changes removing the record destruction requirements, but these efforts proved unsuccessful. In 2011 and again in 2012, the FOP grieved the city’s failure to destroy records. The city denied the grievance and the FOP initiated arbitration proceedings. Matters became more complicated in 2015 when the US Department of Justice (DOJ) launched an investigation into the Police Department’s alleged use of excessive force and discriminatory policing. 

In early 2016, the arbitrator sustained the FOP’s grievance and ordered the parties to negotiate over the destruction of records. The arbitrator later amended his initial award and denied the FOP’s grievances solely on the “public policy” of the DOJ’s request to preserve documents. However, in response to the FOP’s request for reconsideration, the arbitrator issued a third and final award ruling that the initial 2016 award (allowing the destruction of records) could take effect “once the DOJ completed its investigation.”  The city filed a successful circuit court petition to vacate the arbitration award on the ground that it violated Illinois public policy favoring the retention of public records. The appellate court agreed and the Supreme Court then agreed to consider the case.

In its decision, the Supreme Court rejected the FOP’s arguments that the Illinois Public Labor Relations Act established a public policy in favor of enforcing labor arbitration awards over any other laws. The Court also held that union contracts, and arbitration awards based on those contracts, could not trump state laws where a “public policy exception” exists. Accordingly, the public policy inherent in the Local Records Act regarding the preservation, retention and disposition of public records was given precedence over the union contract disciplinary record destruction requirements. 

While this decision was welcomed by those seeking police reform and transparency, particularly in the current political landscape, labor advocates believe the decision unduly weakens the Illinois Public Labor Relations Act and labor agreements across the state.  We can expect the Illinois Assembly will take on the issue and introduce remedial legislation.  Until then, however, government employers should review contract provisions regarding the destruction or preservation of disciplinary records to ensure compliance with the Court’s decision.