The New Year is Coming…Is Your Office Prepared with the Required Illinois Posters for 2019?

Contributed by Sara Zorich, November 20, 2018

As the holidays are quickly approaching and the hustle and bustle of the end of the year begins, it is important to focus on compliance for 2019. Illinois employers need to ensure that they have the required Illinois postings displayed in their workplaces. The following Illinois posters are required for the designated Illinois employers:

  1. NEW Discrimination and Sexual Harassment Poster (Required to be posted by ALL ILLINOIS EMPLOYERS as of September 2018). In addition, employers should review the notice to employers which outlines information about the poster AND the additional posting requirements necessary in the Company’s handbook.
  2. NEW Illinois Service Member Employment and Reemployment Rights Act (ISERRA) Poster (Required to be posted by ALL ILLINOIS EMPLOYERS by January 1, 2019). This is a new law applicable to public and private employers governing military service leave which aligns Illinois’ military law with the federal law USERRA. For private employers, there are some additional requirements beyond USERRA regarding performance reviews addressed in Section 330 ILCS 61/5-5(3) of the Act. This new law has NO IMPACT on the Illinois Family Military Leave Act which is still applicable law.
  3. Pregnancy Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  4. Know Your Rights Poster (Required to be posted by ALL ILLINOIS EMPLOYERS)
  5. Workers Compensation (Required to be posted by ALL ILLINOIS EMPLOYERS)
  6. Unemployment Insurance Benefits Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  7. Emergency Choking Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  8. Smoke Free Illinois Act Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  9. Sexual Harassment in Higher Education Act Poster (Required for those entities who are a public university, a public community college, or an independent, not-for-profit or for-profit higher education institution located in Illinois)
  10. Employee Classification Act of 2008 Poster (Required to be posted by ALL ILLINOIS CONSTRUCTION CONTRACTORS that have one or more individuals that are not classified as employees)
  11. Illinois Occupational Safety & Health Act Poster (Required to be posted by ALL ILLINOIS PUBLIC SECTOR EMPLOYERS)
  12. Illinois Day and Temporary Labor Services Act (Required to be posted by ALL ILLINOIS TEMPORARY LABOR AGENCIES)

U.S. District Court Looks at Change of Employment Terms Sent by Email

Contributed by Michael Faley, November 15, 2018

Email image

Email mailing the world SMS messaging Laptop

The U.S. District Court in Connecticut recently issued an instructive decision on the ever-increasing practice of emailing employees to notify them of changes to the terms of their employment. Financial services giant Morgan Stanley sent employees an email detailing its new mandatory Convenient Access to Resolutions for Employees (CARE) arbitration program. It reflected an effort by Morgan Stanley to expand mandatory arbitration to all employee disputes including previously exempted statutory discrimination claims. After one employee filed a federal lawsuit for age discrimination, Morgan Stanley moved to compel arbitration.

The employee fought back. What was her defense? Well, the employee simply denied that she read her email. She argued that she couldn’t have accepted contract terms she hadn’t even read.

However, the court disagreed and noted that as an at-will employee her employment and its conditions are subject to change. The court found that the former employee had sufficient notice of the change and that her failure to read her email didn’t provide a valid excuse. The court also found it significant that Morgan Stanley provided additional opportunity to review the change by posting it on the company’s intranet. These days, it is “established business practice and expectation for employees both to routinely check email and internal business sites for important updates concerning the business, their employment, or changes in operations or procedures,” the court observed.

Notably, the email stated that employees had a month to opt-out by completing a CARE Arbitration Program Opt-Out Form. By giving an opt-out choice, Morgan Stanley avoided “the condemned practice of ‘unilaterally thrusting’ these changes” on their employees.

In the end, the court found that Morgan Stanley’s CARE program represented a binding and enforceable change to its employee arbitration policy. The case of Antollino v. Morgan Stanley, Case No. 17-cv-1777 (D. Conn. May 11, 2018) is currently under consideration by the U.S. Court of Appeals for the Second Circuit.

Tips for Employers:

  • Conspicuously label employment changes sent by email
  • Post the changes somewhere else too making them accessible to all employees
  • Consider opt-out options
  • Be sure to create a standardized process for notifying employees of changes

 

The #MeToo Effect on Your Company

Contributed by Beverly Alfon and Allison Sues, November 13, 2018

#MeToo

#MeToo on white paper

As we draw closer to the end of 2018, let’s reflect a bit and look forward with purpose.  The U.S. Equal Employment Opportunity Commission (EEOC) recently released preliminary FY 2018 sexual harassment data that is consistent with the #MeToo movement:

  • Sexual harassment charges increased by more than 12 percent – the first increase in at least eight years;
  • EEOC focused on harassment claims and filed 66 harassment lawsuits; and
  • EEOC recovered nearly $70 million for sex harassment victims (up from $47.5 million in 2017).

These statistics do not include the many charges that individuals have filed with state agencies, internal complaints made with employers, lawsuits filed by employees in state or federal courts, or settlements of those claims.

These notable statistics come just one year after the EEOC released an online resource, Promising Practices for Preventing Harassment, in which the agency focused on a checklist of four core elements to “enhance employers’ compliance efforts” when it comes to addressing workplace harassment.

  • Leadership and Accountability – Consistent and demonstrated commitment of senior leaders to maintain a culture in which harassment is not tolerated. Such commitment should be demonstrated, by allocating workplace time to training on harassment, consistently disciplining any employees who harass others, and seeking out feedback from employees on the effectiveness of the employer’s anti-harassment measures.
  • Comprehensive and Effective Harassment Policy – Policy should be clear and communicated to all employees, at every level of the organization. The policy should explicitly apply to applicants and every type of employee, and must make clear that the employer will not tolerate harassment of employees by anyone, including customers, clients, or any other individuals at the worksite. The policy should be easily understandable and periodically reviewed and updated.
  • Effective and Accessible Harassment Complaint Systems – The system should welcome questions, concerns and complaints. It should encourage employees to report potential problems, and provide for prompt, thorough and neutral investigations. It should be flexible enough to allow employees to choose from multiple channels to make their complaint.
  • Effective Harassment Training – Employees need to be aware of leadership values, the policy and complaint systems.  Regular, interactive, and comprehensive training of all employees must be understandable and tailored to the specific workforce.

These guidelines are significant because they are issued by the federal agency that is charged with enforcing federal anti-discrimination laws – and courts are starting to take notice.  Under Title VII of the federal Civil Rights Act, even if an employee does not suffer an adverse employment action (e.g., demotion, termination, etc.), an employer can be held liable for harassment by a supervisor.  However, the employer may avoid liability if it can prove that (a) the employer exercised reasonable care to prevent/correct any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  As a result, most employers have an anti-harassment policy in their handbooks for the purpose of defending against claims.  Recently, however, a federal appellate court acknowledged the existence of an employer’s anti-harassment policy, but specifically asked, “Was the policy in place effective?” In Minarsky v. Susquehanna County, No. 17-2646 (3d Cir. 2018), the plaintiff alleged that she had been harassed by her supervisor for a number of years. The district court granted summary judgment to the employer under the Faragher/Ellerth standard because she never complained to her employer about the harassment. However, the Third Circuit appellate court reversed and remanded the case based on evidence that although the supervisor was reprimanded twice and ultimately fired, the supervisor’s conduct toward the plaintiff was not isolated. Other employees previously complained about similar behavior by the supervisor, and the employer took no action in response. The court held that whether the employer took reasonable care to detect and eliminate the harassment and whether Minarsky acted reasonably in not availing herself of the employer’s anti-harassment safeguards should be decided by a jury. The mere existence of an anti-harassment policy and the plaintiff’s failure to make a complaint pursuant to that policy was not sufficient for the appellate court to uphold summary judgment for the employer.

On the legislative front, California, New York (both city and state), and Delaware, have passed laws that now require employers to train all employees on harassment prevention. New York City requires bystander intervention training. California has specific time and content requirements for its training. Notably, these all seem to be in line with what the EEOC’s Task Force on the Study of Harassment in the Workplace called for in its 2016 report and again in its 2017 compliance guide.  In this growing number of states and cities, employers are no longer allowed to shirk off training for fear of “stirring the pot,” or out of a reluctance to commit resources to anti-harassment efforts.

All of this points to is a rising legal standard for what will suffice to establish an affirmative defense for employers.  A dormant anti-harassment policy in the employee handbook will no longer cut it.

BOTTOM LINE:  In this period of heightened awareness, control what you can by fully implementing the terms of your anti-harassment policies so that your company is in its best defensible position when these harassment claims arise. While we understand that not all employers have the resources to devote to the loftier goals encouraged by the EEOC, there are three concrete steps that you can take to begin mitigating your risks:

  1. Confirm the last time that your company educated all employees on your anti-harassment policy and complaint procedures – and consider another round of training for all levels of employees;
  1. Seek a legal audit of your company’s complaint process;  and,
  1. Seek a legal audit of your company’s investigation procedures (i.e., whether best practices for investigation, documentation and follow-up are being utilized).

 

Post-Election Employment Implications in Illinois, Indiana, Missouri and Wisconsin

Contributed by Steven Jados, Rebecca Dobbs Bush, Suzanne Newcomb, and Brian Wacker November 7, 2018

47062864 - man putting a ballot into a voting box - usaWith the dust mostly settled after election night, we can now look at the impact the election will have on employment laws in Illinois, Indiana, Missouri and Wisconsin, and at the federal level.

Illinois: The major story in Illinois is the election of J.B. Pritzker as governor.  In short, his election is likely to usher in greater infrastructure spending—including an increase in prevailing wage jobs—and more aggressive enforcement efforts by state agencies charged with regulating employers and protecting employees. Beyond that, minimum wage increases, expansions to employee protections under the Illinois Human Rights Act, and more legislation favorable to employees are likely to receive strong consideration in the General Assembly in the near future.

Indiana: We do not expect to see any significant state-level changes in Indiana. Republicans maintained their supermajority in both chambers of the Indiana Statehouse and swept every statewide race on the ballot. Republican Eric Holcomb (elected to his first four year term in 2016) will continue as Indiana’s Governor.

Missouri: In Missouri, the elected status quo kept. Governor Mike Parsons, serving out former Governor Eric Greitens’ term, was not on the ballot. In the Legislature, Republicans maintained their supermajority status in both the Missouri State Senate and House of Representatives. In the Senate, the Republicans maintained their 24 to 10 seat lead over Democrats with no seats changing hands. In the House, preliminary results show that each party flipped three seats from the other, maintaining the Republicans’ dominant 116 to 47 seat advantage.

Missouri voters did, however, approve Proposition B, a minimum wage increase measure by a 62% to 38% margin. The measure increases the state’s current $7.85 minimum wage incrementally over the next five years to: $8.60 in 2019, $9.45 in 2020, $10.30 in 2021, $11.15 in 2022 and $12.00 in 2023. After 2023, the minimum wage will automatically increase or decrease based on Consumer Price Index for Urban Wage Earners and Clerical Workers. The measure also increases the penalty for employers paying employees less than minimum wages. Affected workers can now recover the full amount of the wage rate and an additional amount equal to twice the unpaid wages as liquidated damages.

Wisconsin: In 2011, Governor Walker drew national attention to Wisconsin when he revealed his plan to eradicate collective bargaining for most public workers. Since 2013, the governor and the legislature in Wisconsin have been dominated by Republicans. Scott Walker’s loss to Tony Evers, marks the end of that complete control. And based upon a law signed last year by Governor Walker, the margin of loss, while extremely narrow, is not narrow enough to demand a recount.

Evers campaigned on promises to cut income taxes by 10 percent for people making less than $100,000 and for families making less than $150,000. Evers has also stated that it is his goal to eliminate the limitations on unions (known as Act 10). However, with the legislature remaining primarily Republican, such a goal will likely remain out of reach.

Change does not happen overnight and a Republican legislature will slow any initiatives of Democrat, Tony Evers. However, the loss of a 5 year complete Republican majority of government will certainly have an effect on Wisconsin businesses.

Federal: At the federal level, little is likely to change over the next two years with respect to the Executive and Legislative branches of government. As long as Republicans remain in the White House, the composition and direction of the National Labor Relations Board (NLRB) is unlikely to shift dramatically from its current course. The Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), and other agencies charged with regulation and enforcement of employment-related laws are also likely to continue to operate much as they have for the last two years—albeit with less-aggressive enforcement initiatives directed at businesses and, perhaps, smaller budgets. The prospect of significant employment-related legislation—whether protective of employees or businesses—seems quite unlikely for the foreseeable future given that Democrats control the U.S. House of Representatives, and Republicans control the Senate. However, there is some talk that family paid medical leave and an infrastructure bill may receive bipartisan support. We shall see. Of course, Republicans are likely to continue to use their Senate majority to fill judicial vacancies with conservative judges.

Although gridlock is likely in the federal government, we expect plenty of employment-law related activity at the state level, particularly in Illinois, and we will continue to apprise you of new developments as they arise.

 

Supreme Court Rules ADEA Extends to Small Government Employers

Contributed by Carlos Arévalo, November 6, 2018

GavelBW

Black and white gavel

On Tuesday November 6th, slightly over five weeks after hearing oral arguments, the Supreme Court, by an 8-0 vote, ruled that small government units are covered under the Age Discrimination in Employment Act (ADEA) regardless of their size.  In so doing, the Supreme Court resolved a circuit court split between the 9th Circuit and the 6th, 7th, 8th and 10th Circuits, where the latter courts ruled that the ADEA’s requirement of at least 20 employees for coverage of private-sector employers also applied to state and local governments.

In Guido v. Mount Lemmon Fire District, the plaintiffs worked for a small fire protection district in Arizona. When its two oldest employees were laid off to offset fiscal challenges, they sued alleging that their termination violated the ADEA. The District Court dismissed their claim because their employer did not meet the 20 employee threshold. The Ninth Circuit, however, reversed and the case made its way to the Supreme Court.

Writing for the Supreme Court, Justice Ruth Bader Ginsburg examined a series of amendments affecting both Title VII and the ADEA. Specifically, Justice Ginsburg noted that as originally enacted both laws imposed liability only on private sector employers defined to include a person “engaged in industry affecting commerce whose employees met a numerical threshold.”  In 1972, Title VII was amended to expand its coverage by defining “person” to include “governments, governmental agencies [and] political subdivisions” if they had fifteen or more employees.  Then, in 1974, the ADEA was also amended.  However, unlike Title VII’s 1972 amendments, for the ADEA Congress specifically added “a state or political subdivision of a State” to the definition of “employer” without qualifying it with an employee numerical threshold. Justice Ginsburg found that the use of the phrase “also means” as it related to the definition of employer was “additive” rather than “clarifying.” Accordingly, this meant that for the ADEA Congress actually created a separate category of employer.

In the decision, the Court acknowledged that the ADEA was now given a broader reach than Title VII, but that this disparity was a “consequence of the different language Congress chose to employ.”  The Court also dismissed warnings about the impact on small government services noting that for 30 years the EEOC has consistently interpreted the ADEA to cover government employers of any size and that a majority of state statutes prohibit age discrimination by local governments of any size.

The Supreme Court’s first decision of this term impacts small government employers like Mount Lemmon Fire District in that they will no longer be able to escape liability under the ADEA based on the numerical threshold. Newly minted Justice Brett Kavanaugh did not take part in the decision because arguments took place shortly before his confirmation.

 

Illinois Opioid Pilot Program A.K.A. Medical Marijuana Law 2.0

Contributed by Mike Wong, November 6, 2018

Medical cannabis

Medical marijuana in prescription jar near stethoscope

On August 28, 2018, Illinois Governor, Bruce Rauner, signed into law the Opioid Alternative Pilot Program which expands and modifies the Illinois Medical Marijuana law in several important ways that are relevant to employers.

First and foremost, the Pilot Program allows doctors to certify if an individual qualifies to use medical marijuana under the Opioid Alternative Pilot Program as an alternative to prescribing opioids (such as Codeine, Norco, Vicodin, Hydrocodone, Demerol, or Percocet). In this day and age, almost any serious injury in which there is surgery or pain issues, doctors will prescribe a pain killer, which is often an opioid. Under the Opioid Alternative Pilot Program doctors will now have the ability to certify an individual to get medical marijuana, instead of prescribing opioids.  In doing so, an employee’s doctor must certify that the employee has been “diagnosed with and is currently undergoing treatment for a medical condition where an opioid has been or could be prescribed.” Once the doctor’s written certification is uploaded to the Illinois Cannabis Tracking System and verified, the employee will receive a “Provisional Registration” which will allow the individual to purchase medical marijuana for a period of 90 days. While we are waiting on the Illinois agencies to issue rules and regulations to clarify this process, it appears this “Provisional Registration” will allow an individual to purchase medical marijuana the same day that they receive the written certification – much like an individual could pick up a prescription for opioids from a pharmacy the same day they visited their doctor and got the opioid prescription.

The law also extends “Provisional Registrations” to individuals who are certified as having a debilitating medical condition. This means that individuals who seek to become registered medical marijuana users no longer have to wait three to four months to receive their registration cards before being able to purchase medical marijuana.  Rather, they can get a “Provisional Registration” simply by registering online through the Illinois Medical Cannabis Pilot Program’s eLicense System.  Once registered, individuals will get a Provisional Registration that will allow them to purchase medical marijuana while the Illinois Department of Public Health processes their application.

The law also expands access by removing the section of the law that prohibited individuals with certain criminal convictions from becoming registered users and with it the requirement for fingerprints and background checks.

All in all, the Opioid Alternative Pilot Program significantly expands who can get medical marijuana in Illinois and provides faster and easier access. This means that Illinois employers can expect to see more employees who are legally allowed to purchase and use medical marijuana in Illinois.

A few steps that employers can take to make sure they are ready for this program are:

  • Make sure managers and supervisors are aware of this change in the law and the importance of properly documenting any reasonable suspicion drug tests.
  • Make sure that Employee Handbook and Drug Testing Policies are up to date.
  • Understand how to enforce a Drug Free Workplace policy, without discriminating against a medical marijuana cardholder

*This article was changed after initial publication to make clear that the doctors will not be “prescribing” medical marijuana, but rather will be “certifying” that the individual has been “diagnosed with and is currently undergoing treatment for a medical condition where an opioid has been or could be prescribed.”

 

 

Politics & Election Law in the Workplace: Midterm Elections 2018

Contributed by Noah A. Frank and Brian M. Wacker, October 24, 2018

2018 election - 3d renderingIt’s that time again: Election Season. Employers must be aware of important legal issues when responding or reacting to politics in the workplace, as well as understanding workers’ rights to engage in the political process. This article provides key reminders to public and private employers to manage the workplace without accidentally violating relevant laws.

Imposing a blanket ban on political discussions may run afoul of the NLRA.         

The National Labor Relations Act (NLRA), which applies to private unionized and non-unionized workplaces, protects non-supervisory employees’ discussions about terms and conditions of employment. As such, employers may not prohibit all political discussion in the workplace because some political speech could intersect with work-related matters (e.g., immigration reform, equal pay, or the minimum wage) and therefore may be protected.

The same is true for an employer’s ban of political insignia in the workplace: an employer may prohibit buttons, signs, or clothing bearing pure political speech in the workplace (e.g., “Vote for Candidate X!”), a ban on similar insignia sufficiently connected to employment issues (e.g., “Vote for Candidate X to raise the minimum wage!”) may violate the NLRA.

Political speech may also implicate anti-discrimination, anti-harassment, & anti-bullying protections.

Hot political issues may overlap with an employee’s protected status. For example, impassioned conversations may be deemed discriminatory or harassing to an individual based on race, religion, national origin, religion, or gender, and, as applicable, could even implicate anti-bullying laws. For example, consider recent issues related to the #MeToo movement, harassment of non-English speakers at restaurants, or even Justice Brett Kavanaugh’s confirmation hearings.

Employers must be careful that political discourse in the workplace does not create a hostile or discriminatory work environment for other employees, or otherwise implicate various equal employment opportunity and civil rights laws on federal, state, and local levels.  Remember: the workplace is not the place to “try out” new material – especially for supervisory and management personnel.

Avoiding a 1st Amendment Covfefe.

The First Amendment protects public employees from discipline and termination as a result of their protected free speech and political views or activities.  Many local ordinances similarly protect county, municipal, and other public agency employees’ political speech.  That said, public employees may not lawfully use public resources – including on-the-clock time – for campaign activities.

The First Amendment does not constrain private employers from banning political discussion in the workplace (subject to the above).  But proceed with caution.  Some state and local laws (such as D.C., California, and New York) prohibit discrimination based on political affiliation and political activity outside of the workplace.  Additionally, some states (like Illinois) prohibit employers from gathering or keeping records of employees’ associations, political activities, publications, communications, or non-employment activities. Similarly, many states (like Illinois, Wisconsin, and Missouri) protect an employee’s privacy surrounding their off-duty political speech on the internet, including speech on social media sites like Facebook or Twitter.

Of course, all employers have a legitimate and lawful interest in ensuring that employees are productive and that political discussions or activities do not impede the normal business operations, especially during working hours.  Related employment policies should be neutral without favoring a certain political view.

Private employers may persuade only a “restricted class” of individuals to vote for or against a political candidate.

Federal election laws define this restricted class as “executive or administrative personnel” who receive a salary and have policymaking, managerial, professional, or supervisory responsibilities.  However, a corporation may not advocate for a particular candidate or political party in its communications to employees outside of the restricted class, including hourly employees.

Employees probably have the right to voter leave.

In many states, employees have the right to take time away from work to exercise their vote.  Often times, missed worktime is paid, but employers can mandate the hours the employee takes so as to minimize the disruption to the workforce and paid leave.

For example, Illinois employees are entitled to two hours of leave, “without penalty,” when the polls are open to vote.  The employee must request the leave at least the day before the election (note: requests made on Election Day may be denied).  The employer may dictate the hours of leave.  However, employers must permit a two hour absence during one’s actual work day where an employee’s working hours begin less than two hours after polls open and end less than two hours before the polls close.  For example, if the polls are open from 6:00 a.m. to 7:00 p.m., then:

  • An employee working a 5:00 a.m. to 9:00 p.m. “double” would be given two hours of paid leave to vote, at a time chosen by the employer.
  • An employee working 6:00 a.m. to 6:00 p.m. either would need to be either (a) released by 5:00 p.m. (and paid for the one hour of missed work) to have a two-hour period to vote, or (b) allowed any other two-hour period off work while the polls are open, with pay, to vote.
  • An employee working from 6:00 a.m. to 3:00 p.m. may be directed to vote after work, without additional compensation.

Missouri employees may take up to three hours of paid leave– but only if the employee actually votes.  Wisconsin permits up to three hours of unpaid leave.  Like Illinois, Missouri and Wisconsin employees must provide notice before Election Day, and employers may dictate the time of leave.

Unlike its Midwest sisters, Indiana has no specific employment voting leave rights.

Of course, California provides unique challenges for companies operating in different states.  Employees must be granted “enough” leave so that they will actually be able to vote, but only two hours of working time needs to be paid.  California employers must post a “Time Off to Vote” notice at least ten days before any state-wide election (failure to post would likely excuse employees from giving at least two working days’ notice of their need for time off to vote).

Employers may want to encourage early and absentee voting.

To minimize disruptions to the work day, employers may want to try to encourage employees to take advantage of early and absentee voting as permitted by the various states.  For example, in Illinois any eligible voter may now request to vote by mail. (It used to be permitted in only special circumstances when a voter was absent from his/her home jurisdiction).

Election judge leave may also be protected.

Wisconsin requires employers to provide an unpaid leave of absence for the entire Election Day to any employee who is appointed to serve as an election official. Employees making this request must give the employer seven days’ notice, and the employer is entitled to request that the election district’s municipal clerk verify the appointment.

Illinois companies with 25 or more employees may limit 10% of the workforce to serve as election judges.  Employee(s) must provide twenty (20) days’ notice of need for leave.  While this time need not be paid, employers may not otherwise penalize employees nor require use of paid time off.

California protects employees from suspension and discharge while serving as an election worker, while Missouri and Indiana have no specific laws on the topic.

The Bottom Line:

Election law is state (and sometimes county and city) specific.  If the election cycle is creating any sort of workplace tension, employers should revisit conduct standards, anti-harassment / workplace bullying policies, and reporting procedures.  Experienced employment counsel may assist with implementing sound policies and practices to help manage workplace issues that may arise during election season.