Category Archives: employers

Employers with Employees in California, Are You Ready to Report Your EEO Pay Data?

Contributed by Sara Zorich, February 19, 2021

State of California

In follow up to our previous blog, the March 31, 2021 deadline is quickly approaching for employers to provide their California Pay Data Report to the California Department of Fair Employment and Housing (DFEH). Required reporting applies to private employers who meet the following three (3) requirements: (1) 100 or more total employees, (2) required to file a federal EEO-1 report and (3) at least 1 employee in California. 

DFEH recently updated its FAQ’s related to the California EEO reporting requirements.  The FAQ’s, along with DFEH’s User Guide, make it clear that employers must carefully review their reporting requirements and data for submission. The DFEH User Guide notes that the California requirements are NOT the same as the previous EEOC proposed rules or the current Federal EEO-1 reporting requirements. The California Pay Data Report requirements have a number of significant differences employers must be aware of, for example:

  • Non-binary employees must be reported in California in the same manner as male and female employees.
  • An employee’s pay is reported from W-2 Box 5.
  • An employee’s hours worked in 2020 includes any hours the employee was on any form of paid time off for which the employee was paid by the employer (such as vacation time, sick time, or holiday time) during 2020.
  • Multiple-establishment employers must report all establishments, including those with fewer than 50 employees, in the same manner by providing the number of employees and total hours worked for each employee group assigned to the establishment. For example, for multiple-establishment employers with establishments inside and outside of California, the employer: (A) must report to DFEH on its California establishments, all of its employees assigned to those establishments (including any employees outside of California) whether or not teleworking, and any other California employee (including those teleworking from California but assigned to an establishment outside of California); and (B) may report to DFEH on its establishments and employees not covered by (A).
  • If an employee’s W-2 is corrected after the employer submits its California Pay Data Report to DFEH, and the correction would put the employee in a different pay band than originally reported or would otherwise require a correction on the employer’s report, the employer should promptly submit a corrected pay data report, identifying the corrected cells and explaining the correction in the remarks field(s).

As stated, the California Pay Data Report must be submitted by March 31, 2021.  In light of COVID-19, DFEH is allowing an employer to request a deferral of enforcement and if approved DFEH is providing the employer until April 30, 2021 to file its Pay Data Report. All requests for such deferral of enforcement must be filed with DFEH) no later than March 31, 2021.

In light of these new California reporting requirements and the similar currently pending legislation in Illinois, employers should proactively review and understand how their pay data would appear should they be investigated for pay disparity claims.

What Will the Biden Administration Bring for Employers?

Contributed by Beverly Alfon, January 12, 2021

They say that the only constant in life is change.  Here is a quick overview of the shift that we expect to see in the realm of labor and employment after President-elect Joe Biden takes office.  

National Labor Relations Board (NLRB)

The NLRB is expected to have a Democratic majority as early as August 2021.  The five-member Board currently has three Republican members, one Democrat, and one vacancy.  The expectation is that the Biden administration will move quickly to fill the vacancy.  In addition, the term of William Emmanuel, a Trump appointee, will expire in August 2021 – opening the door to a third Democrat.

The current NLRB General Counsel, Peter Robb – who has pushed a strong pro-employer stance in his role as prosecutor of unfair labor practice charges – will see his term expire in November 2021.  There is some speculation that due to pressures from organized labor, President-elect Biden will find a way to terminate Robb’s terms prior to that.

As with prior administration changes, the expectation is that a Democratic Board majority and new General Counsel will lead the Board’s policy and enforcement priorities will go back to a pro-labor agenda. With this expected change will likely come easier roads to organizing, broadening of joint-employer liability, a return to post-contract continuation of union dues, and stricter restrictions on an employer’s ability to exercise discretion even when contract language provides for it. Not all changes will be immediate, of course, as case precedents established by President Trump’s appointees are not subject to reversal until cases presenting the relevant issues come before the Board.

We will be keeping an eye out for components of (or the entirety of) the Protecting the Right to Organize Act (PRO Act), which passed in the House in early 2020 with a vote of 224 to 194, largely along party lines.  The legislation went nowhere in the Senate in 2020, but it is 2021. The results of the Georgia runoff elections have changed the political landscape.  Among other things, the PRO Act was aimed at giving workers more equal footing during disputes at work, prohibiting employers from permanently replacing economic strikers, creating a private cause of action for unfair labor practices, authorizing the NLRB to add penalties for employers who retaliate against workers who organize, and allowing for secondary boycotts.  President-elect Biden is a strong supporter of the PRO Act provisions, making clear that significant, pro-labor changes will be made through and within the NLRB.

Equal Employment Opportunity Commission (EEOC)

The EEOC enforces federal laws that prohibit employment discrimination, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964.  The EEOC will have a Republican majority until July 2022.  The EEOC’s current Strategic Enforcement Plan, which establishes the EEOC’s enforcement priorities, will also be in place until 2022.  Therefore, changes to the agency initiatives will be even less immediate than at the NLRB, but the expectation is that the EEOC will return to its aggressive enforcement of these federal employment laws against employers, likely focused on workplace harassment, equal pay, and LGBT discrimination/harassment claims (especially in light of the June 2020 U.S. Supreme Court decision in Bostock, which holds that an employer who fires an individual merely for being gay or transgender violates Title VII).

U.S. Department of Labor

President-Elect Joe Biden has formally nominated Boston Mayor, Marty Walsh for Secretary of Labor.  In response to the announcement of his nomination, Walsh tweeted, “Working people, labor unions, and those fighting every day for their shot at the middle class are the backbone of our economy and of this country. As Secretary of Labor, I’ll work just as hard for you as you do for your families and livelihoods.”  Some media outlets are reporting that Walsh, like Biden, is more moderate than meets the eye, willing to reach across the aisle in order to make things happen.  However, there is no question that unions expect robust support from Walsh due to his strong ties to organized labor, including a role as head of the Boston Building and Construction Trades Council.   If confirmed by the Senate (which is very likely in light of the results of the Georgia runoff elections), Walsh would be the first union member to serve in this role in almost 50 years.

With Walsh at the helm, we expect that federal minimum wage and paid sick leave benefits will be top priorities.  Walsh was a strong supporter of the state-wide Massachusetts law requiring paid family and medical leave benefits, and the forthcoming state minimum wage requirement of $15 an hour.  We also anticipate that the DOL will revisit overtime standards, rules dealing with pay entitlement for off-the-clock work (especially in this time of widespread remote work), and the joint employer standard. It is also very likely that the DOL’s recently issued independent contractor classification regulations will be rescinded or superseded by new regulations that would be more worker-friendly.  Enforcement will likely be aggressive, especially in industries like food manufacturing, fast food, and construction, which are priorities for organized labor, especially in terms of wages and workplace safety (especially, COVID-19-related complaints). Indeed, there is some expectation that this DOL will be even more aggressive and progressive than that of the Obama administration.

Bottom line:  Employers must be focused on compliance.  While we cannot specifically predict what will come over the next few months and years, it is imperative for employers to anticipate the pendulum swing and assume stricter enforcement of rules and regulations against employers, sooner rather than later. 

Update: EEOC Issues Guidance Regarding COVID-19 Vaccines in the Workplace

Contributed by Suzannah Wilson Overholt, December 16, 2020

Doctor hand wears medical glove holding syringe and vial bottle with covid 19 vaccine drug multiple dose for injections.

In follow-up to our previous blog regarding mandating the COVID-19 vaccine in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) has now issued guidance addressing that very issue. According to the guidance, employers may ask employees if they have had the COVID-19 vaccine and require the vaccine pursuant to U.S. Centers for Disease Control (CDC) or other federal or state guidelines. However, any mandates must allow exemptions for employees who are unable to receive the vaccine due to disability or a sincerely held religious belief or practice.

The key takeaways from the EEOC’s guidance are as follows:

  • In order for an employer to require the COVID-19 vaccine, it must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:
    • the duration of the risk;
    • the nature and severity of the potential harm;
    • the likelihood that the potential harm will occur; and
    • the imminence of the potential harm. 
  • An employer must provide reasonable accommodations to a vaccine requirement for employees who seek accommodation based on disability or a sincerely held religious belief, practice, or observance. The EEOC has consistently required such accommodations, which we described in an earlier blog.   
  • The administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) is NOT a “medical examination” for purposes of the Americans with Disabilities Act (ADA). 
  • Pre-screening questions associated with administering the vaccine may implicate the ADA’s prohibition on disability-related inquiries if the employer requires the vaccine and answering the questions is mandatory. If the employer administers the vaccine, it must show that pre-screening questions are “job-related and consistent with business necessity.” This is not a concern if the vaccine and answering the questions are voluntary.
  • Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is NOT a disability-related inquiry. 
  • Title II of the Genetic Information Nondiscrimination Act (GINA) is NOT implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute.
  • GINA may be implicated if pre-screening questions include questions about genetic information, such as family medical history. If the pre-vaccination questions include questions about genetic information, employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

Due to the evolving nature of this issue, advice of qualified counsel should be sought before implementing any COVID-19 vaccine program in the workplace.

Employers Should Review their Policies Regarding Hairstyles as the CROWN Act Movement Gains Momentum

Contributed by Allison P. Sues, December 1, 2020

A law book with a gavel – Employment Law

Have you seen the 2019 viral video and articles about the young African American wrestler being told by a Caucasian referee that he either had to cut off his locs or forfeit the match? Or the resulting public outcry and negative media attention the referee and school received?

Since 2019, CROWN Act legislation has been gaining momentum. The CROWN Act stands for “Creating a Respectful and Open World for Natural Hair” and is legislation that specifically prohibits discrimination in employment based on hair texture, protective hairstyles – including braids, locs, twists, and bantu knots – and other cultural hair stylings such as extensions, hair ornaments, and head wraps.  The natural hair movement was created to counter the problem of minority employees, primarily African Americans, feeling compelled to change their natural hair styles or texture in order to abide by their workplace’s view of professional appearance.  

On October 23, 2020, Pittsburgh enacted a CROWN Act and in doing so followed several other states and cities, including California, New York, Washington State, Colorado, Maryland, Virginia, and New Jersey.  In the Midwest, Illinois, Michigan and Ohio are currently considering passing CROWN Acts. 

At the federal level, in September 2020, the U.S. House of Representatives passed a CROWN Act, which is now awaiting review by the Senate. 

Even if a CROWN Act is not enacted in your state or locale, employers should proactively review their workplace rules regarding appearance and hair styling to limit their exposure to discrimination claims, including those based on race, religion, national origin and gender. 

The U.S. Equal Employment Opportunity Commission has long taken the position that workplace rules about professional appearance that disproportionately affect employees in a protected class may give rise to Title VII discrimination claims. Employers should heed the following:

  • Eliminate workplace rules restricting hairstyles whenever possible.  Even neutral policies that require employees to keep hair neat, clean, kempt or tidy may be discriminatory if they are enforced in a way that prohibits employees who are minorities from wearing their hair naturally.
  • Where it is necessary to have hairstyle policies, ensure that any restrictions are rooted in legitimate health and safety justifications that are backed by objective evidence. The policy cannot restrict hairstyles associated with different cultures due to a “corporate image,” “customer preference,” or unfounded and stereotypical concerns about health or cleanliness. 
  • Any policies addressing hairstyles should be in writing and distributed to all employees.  The policy should expressly inform employees that they may request reasonable accommodations for hairstyles of religious significance. 
  • All policies should be enforced consistently amongst all employees.  For example, if all employees must tie their hair back if it is longer than their shoulders, this rule should be applied across the board regardless of the employees’ demographics (e.g. race, gender, national origin) and hair (e.g. locs, or fine blonde hair).
  • Employers should train managers on anti-discrimination laws and company expectations regarding hairstyles and remind them that if in doubt to immediately involve HR. 

In reviewing policies, changes to your policies and addressing any potentially problematic employee issues, make sure to work with trusted legal counsel, who is experienced in labor and employment law issues.

Can I Require My Employees to Get the COVID -19 Vaccine?

Contributed by Suzannah Wilson Overholt, November 12, 2020

Medicine doctor and vaccine dose syringe in laboratory, microbiology and pharmaceutical research.

With the prospect of an FDA approved COVID-19 vaccine on the horizon, employers are already wondering whether they will be able to require their employees to get the vaccine. Because the pandemic has caused changes in other workplace rules, the answer to this question is not clear.

The Americans with Disabilities Act (ADA) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. This is ordinarily a difficult standard to meet unless the employer is part of the healthcare field. However, due to the current circumstances of the COVID-19 pandemic and the fact that an individual with COVID-19 is considered to pose a direct threat to the health of others, the EEOC may allow mandatory COVID-19 vaccines in workplaces beyond healthcare.  This conclusion is supported by the fact that the EEOC has already allowed employers to screen employees for COVID-19 on this same basis.

  While employers may be permitted or able to require employees to get the vaccine, employers should carefully consider the potential legal and employee morale implications and complications.  A Gallup poll recently showed just half of Americans would be willing to get a COVID-19 vaccine that the FDA approved, which is less than were willing to do so this past summer. These poll results indicate that a large number of employees will likely be reluctant to get the vaccine – at least initially. Therefore, enforcing a vaccine mandate, i.e. telling workers they have to have the vaccine or be fired, could be difficult if a large number of employees refuse to comply.  

If the EEOC authorizes mandatory COVID-19 vaccines anywhere in the workplace, employers should likely assume that the same restrictions that apply to mandatory vaccines in the healthcare field now will apply to all workplaces.  Currently, the EEOC requires healthcare employers to consider exemptions for employees who cannot receive vaccines for reasons related to disability, pregnancy, or religion. Employers analyze each request for exemption on a case-by-case basis, including reviewing the employee’s job position as well as the employee’s particular religious belief or medical documentation corroborating the disability at issue.  For more about these exemptions and the analysis that goes with them, see our previous blog on this topic, “Navigating the Legal Risks of a Mandatory Vaccine Program.”

As long as there continues to be widespread concern about the safety of a COVID-19 vaccine and no specific authorization from the EEOC to allow employers to mandate that employees have the vaccine, employers would be wise to continue to require masking, proper hygiene and social distancing.  Employers may also stress the importance of getting a flu shot and encourage employees to get one by subsidizing the cost, allowing paid time off to get one, or offering flu shots at the workplace to reduce any inconvenience. 

We will continue to monitor and report on guidance from the CDC, EEOC and other federal agencies for developments regarding the COVID-19 vaccine.

Employee Voting Rights: Are Employers Required to Give Time Off to Vote?

Contributed by Suzannah Wilson Overholt, October 15, 2020

Stickers to indicate voting

With the General Election on November 3rd rapidly approaching, registered voters are exploring various options for casting their ballots, be it through mail or in person early or on Election Day (November 3rd). One critical factor that may drive an individual’s voting plan is their work schedule, which raises the question of whether employers are required to give their employees time off to vote.

The answer to that question depends on the state where you work. A summary of the requirements from around the Midwest is below:

Illinois requires employers to give employees two paid hours off to vote. If the employee’s working hours begin less than two hours after opening of the polls and end less than two hours before closing of the polls, the employer must provide the employee a two hour paid absence during working hours. However, the employer may decide when the hours are taken. Employers may require that employees give at least one day’s advance notice of their intent to take the time off and to request paid leave.  No proof of voting is required.

Iowa requires employers to give employees as much time to vote as will add up to three hours when combined with non-work time.  However, time off to vote is not required if the employee has three consecutive non-work hours available while the polls are open.  The time off is paid but no proof of voting is required.  Employees must give their employers written notice of their intent to take voting leave before the election.  The employer may decide when the hours are taken.

Missouri requires employers to give employees three paid hours off to vote.  However, this leave is not required if the employee has three consecutive non-work hours available while the polls are open.  Employees seeking to take leave to vote must give notice prior to Election Day and must actually vote to be paid.  The employer may decide when the hours are taken.

Wisconsin also requires employers to allow employees up to three consecutive hours off to vote.  The time is unpaid and employees must notify their employers of their intent to take the leave before Election Day.  The employer may decide when the hours are taken.  No proof of voting is required. 

Kentucky requires employers to give employees a minimum of four hours of time off to vote.  The time is unpaid and employees must give one day’s advance notice of their intent to take the time off.  An employee who takes the time off but does not vote is subject to disciplinary action.  The employer may decide when the hours are taken.

Ohio requires employers to give employees a reasonable amount of time off to vote.  The time is only paid for salaried employees.  No advance notice or proof of voting is required.  An employer cannot refuse to allow an employee to serve as an election official on Election Day.

Neither Indiana nor Michigan requires employers to allow employees time off to vote. 

We encourage all registered voters to make a plan and cast their ballot.

Illinois Releases Disclosure Form for Employers to Report Adverse Judgments and Administrative Rulings Related to Sexual Harassment and Unlawful Discrimination in Advance of October 31st Reporting Deadline

Contributed by Sara Zorich, August 18, 2020

48895877 – hand with pen over form

In August 2019, SB0075  – the Workplace Transparency Act – was signed in Illinois.  The Act created a number of new requirements for employers including, but not limited to, a new reporting requirement regarding adverse judgments and administrative rulings related to sexual harassment or unlawful discrimination brought under the Illinois Human Rights Act (IHRA), Title VII of the Civil Rights Act of 1964, or any other federal, state, or local law prohibiting sexual harassment or unlawful discrimination.

This new reporting obligation begins on July 1, 2020 for the period from January 1, 2019 to December 31, 2019. The filing deadline for this disclosure period is October 31, 2020. This reporting requirement is applicable to any employer that employs one or more employees in Illinois; however, only employers who actually had an adverse judgment or administrative ruling during the reporting period will need to file a reporting form.

An “adverse judgment or administrative ruling” is defined by the IHRA as any final and non-appealable judgment that finds sexual harassment or unlawful discrimination, where the ruling is in the employee’s favor and against an employer. (775 ILCS 5/2-108). Reportable adverse judgments or administrative rulings include those in the State of Illinois and any other jurisdiction nationwide. Employers will only need to provide the number of adverse judgments or administrative rulings and the basis of each—but employers do not need to provide any further details regarding the specific matters. Further, employers do not need to report settlements as part of this annual disclosure.

The IHRA disclosure form can be downloaded online  and either physically filed or emailed to the IDHR at IDHR.Section2-108@Illinois.gov. Going forward, the disclosure deadline will be July 1st each year. The Illinois Department of Human Rights has also published a FAQ to assist businesses with the reporting requirements.

Any employer that has one or more employees in Illinois should review their litigation and administrative matters from 2019 to determine if their company needs to file the IHRA reporting form by October 31st.

California Court Re-Classifies Independent Drivers as Employees Pursuant to AB5

Contributed by Carlos Arévalo, August 11, 2020

close up of hand with transparent smartphone and virtual car sharing icons over black background,

On Monday August 10, 2020, Judge Ethan Schulman of the California Superior Court issued an injunction against Uber and Lyft ordering them to classify drivers as employees and not as independent contractors. The order follows a preliminary injunction lawsuit filed this spring by the State of California, along with a number of large cities in the state, where it was alleged that Uber and Lyft were in violation of California’s Assembly Bill 5 (“AB5”). A new state law that went into effect on January 1, 2020, AB5 codified what is known as the “ABC” test, which is commonly used to determine whether a worker is an employee as opposed to an independent contractor.

Specifically, under AB5, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

  1. The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. The person performs work that is outside the usual course of the hiring entity’s business.
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

In his order, Judge Schulman found that neither Uber nor Lyft would be able to establish the B prong of the ABC test and as a result, the likelihood that California will ultimately prevail in its action against Uber and Lyft is “overwhelming.”  Judge Schulman also found that any costs to Uber and Lyft related to restructuring and proper worker classification to come into compliance with AB5 are outweighed by the harm to the drivers, businesses and the public associated with workers being deprived of “the panoply of basic rights and protections to which employees are entitled under California law.”  The court’s opinion is not surprising in light of AB5’s prohibition of engaging anyone as an independent contractor who is critical to and part of a company’s business operations.  In short, prong B creates a burden that is very difficult for any business to meet.

The order represents the latest development in an ongoing battle regarding the classification of drivers. After the enactment of AB5, Uber filed a federal lawsuit challenging the law’s constitutionality. Uber, Lyft and others have also championed Proposition 22, a ballot initiative in the November 2020 election to define app-based transportation (rideshare) and delivery drivers as independent contractors.  Just last week, California’s Labor Commissioner Lilia García-Brower alleged in separate lawsuits against Uber and Lyft that they are “committing wage theft by misclassifying drivers as independent contractors” and that “freelance workers [are being] deprived of a host of legal protections in violation of California labor law.”  The lawsuit is in response to nearly 5,000 claims from drivers for lost wages.

While pending in California, these actions illustrate how critical it is to ensure workers are properly classified under applicable state law. Employers should be mindful to ascertain what test is used in their state for various laws, and how workers are evaluated against such standards. Counsel should also be utilized to analyze and craft independent contractor agreements that do more than simply label the relationship as independent contractor, but also incorporate elements necessary to demonstrate that the contractor truly meets the applicable standards.

U.S. Supreme Court Issues Landmark Decision Providing Discrimination Protections to LGBTQ Workers

Contributed by John Hayes, June 15, 2020

Judge’s Supreme Court gavel with law books

On June 15, 2020 the United States Supreme Court handed down a momentous decision ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender employees from workplace discrimination. The decision consolidated three cases where the employees were terminated from their jobs: two separate cases involving the terminations of gay employees; and one case involving the termination of a transgender employee.

The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Alito wrote a dissent joined by Justice Thomas, and Justice Kavanaugh wrote a separate dissent.

Title VII bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether discrimination “because of sex” applies to gay and transgender workers. While most federal appeals courts interpreted Title VII to exclude sexual orientation discrimination, both the Second Circuit Court of Appeals (in New York) and the Seventh Circuit Court of Appeals (in Chicago) had previously ruled that discrimination based on sexual orientation is a form of sex discrimination. 

Writing for the majority, Justice Gorsuch stated:

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

… 

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.  We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law.

Currently 22 states, including Illinois, have their own laws prohibiting job discrimination based on sexual orientation or gender identity.  While these laws remain in force, the Supreme Court’s ruling means federal law now provides similar protections for LGBTQ employees in the rest of the country.

Employers throughout the United States must now be aware that federal employment law (noting that Title VII covers only employers with 15 or more employees) prohibits discrimination against gay and transgender employees. The upside is that employers will no longer have to navigate inconsistent laws that vary from state to state and it will also likely make employee training easier and more consistent for employers operating in multiple states. Employers should update their discrimination and harassment policies to make sure gay and transgender employees are included in anti-discrimination protections.

It should also be noted that, for most employers, attempting to justify an employment action against gay or transgender employees on religious grounds will not be a successful avenue of defense.  The so-called “ministerial exemption” is very narrowly tailored to cover only churches and religious institutions, and applies only to employees performing a “ministerial” role within the institution.   

The takeaway for the vast majority of employers is that it is now crystal clear that Title VII’s prohibitions on discrimination based on sex include gay and transgender individuals. 

Reminder for Chicago Employers: Fair Workweek Ordinance Compliance Begins July 1

Contributed by Peter Hansen, May 28, 2020

calendar on white background. 1 july. 3d illustration.

Chicago employers take note – beginning July 1, 2020, you may be required to post work schedules at least 10 days in advance in order to comply with the Fair Workweek Ordinance. This seems like as good a time as any for a refresher on the Ordinance.

Are We Subject to the Ordinance?

Generally, employers must comply with the Ordinance if they meet each of the below conditions:

  • They employ 100+ employees (both inside and outside of Chicago) or, for non-profit corporations, 250+ employees;
  • They employ 50+ employees who spend the majority of their time at work in Chicago and earn $50,000 or less if salaried / $26.00 per hour if hourly; and
  • They are primarily engaged in one of the following industries: building services; healthcare; hotels; manufacturing; restaurants; retail; and warehouse services.

What About Union Workers?  

Employers subject to any existing Collective Bargaining Agreement (CBA) need not comply with portions of the Ordinance that conflict with the CBA as to the particular bargaining unit. However, any CBA entered into after July 1, 2020 must explicitly waive the Ordinance’s requirements “in clear and unambiguous terms” in order to avoid compliance through the collective bargaining process.

What Does the Ordinance Require?

The Ordinance places a number of requirements on employers, including:

  • Providing new employees with a written estimate of days and hours of work within 90 days of their start of employment;
  • Posting a written work schedule at least 10 days in advance for employees who earn $50,000 or less / $26.00 per hour or less;
  • Paying employees 1 hour of “predictability pay” for each shift change that occurs after the 10 day schedule notice;
  • Offering additional shifts to existing part-time employees first, then to full-time employees, then to temporary/seasonal workers; and
  • Providing at least 10 hours of rest between shifts, unless the employee consents to a shorter rest period in writing and is paid at least 1.25 times their regular rate of pay for the shift.

Additionally, employers must both post and provide notice of the Ordinance to all covered employees with their first paycheck on or following July 1, 2020.

But Wait, What About COVID-19?

Given COVID-19’s far-reaching impact, Chicago employers may have assumed that the city would delay enforcing the Ordinance. This is not the case, however: the city made it clear that the Ordinance’s schedule change provisions apply unless COVID-19 caused the employer “to materially change its operating hours, operating plan, or the goods or services provided by the Employer, which results in the Work Schedule change.”  This limited exception should be relied upon sparingly.

The city also delayed private employees’ right to file a lawsuit pertaining to alleged violations to January 1, 2021; however, the city can still enforce the Ordinance and issue fines – which could range from $300 to $500 per day, per employee.

This is a somewhat complicated topic, so any employers who are unsure of their covered status and/or how to comply on the most practical level possible should contact experienced labor & employment law counsel.