Category Archives: New Legislation

A Win for Trial Lawyers: A Blow to Illinois Employers

Contributed by Anita Johnson

SB 3287 was signed by Governor Quinn yesterday, June 5, 2014. This legislation effectively overturns the prior (2012) Appellate Court decision in Mockbee and Mockbee v. Humphrey Manlift Company, Inc. and R. Harris Electric, Inc., 973 N.E.2d 376, 362 Ill.Dec. 276.  It eliminates the workers’ compensation exclusive remedy/immunity enjoyed by service companies that provide safety consulting services unless those companies are wholly-owned by the employer, insurance broker or the insurer. Erosion of the exclusive remedy provision always creates more litigation and higher costs. The need for removing this protection only for certain safety consulting companies is unknown but again it will be a problem for smaller to mid-sized employers which typically cannot afford or need a full-time safety professional on their staff to address safety issues.  Many employers use consulting firms, at varying degrees, which provide expertise to help keep their operations in compliance with OSHA standards and limit their workers’ compensation exposure to employee injury. SB 3287 will only make it more difficult for employers to maintain safe workplaces.   In addition, these necessary and valuable consulting businesses may be forced out of business by increased insurance costs of their own in light of increased legal exposures.  One more double hit on small business and poor public policy.

Attention Illinois Employers: Senate Approves Amendments to Workplace Violence Prevention Act

Contributed by Noah A. Frank

On April 9, 2014, the Illinois Senate unanimously passed amendments to the Illinois Violence Prevention Act (“VPA”), sending the bill to the House for consideration once the General Assembly reconvenes on April 29, 2014.  The VPA, effective only since January 1, 2014, is meant to enable employers to protect its workforce, customers, guests and property by limiting access by potentially violent individuals (“PVI”).  Under the Senate-approved amendments, an employer would obtain, through any state circuit court, a workplace restraining order to prohibit further threatened or actual violence by a PVI.

To obtain the restraining order, the employer would need to file an affidavit that shows (i) an actual or credible threat of violence by the PVI towards an employee to be carried out at the workplace, and (ii) that the employer (or its employees) has or will suffer irreparable harm at the workplace.  Where the employer seeks a restraining order as a result of an employee being a victim of domestic violence, the employer must take additional steps of notifying the employee in writing of its intent to seek the order, and communicate directly and “verbally” with the employee to address other safety or well-being concerns that may result or whether the restraining order would interfere with the employee’s own legal actions.

The restraining order may prohibit the PVI’s presence in the workplace, and order the PVI to pay the employer for losses including property repair or replacement, attorneys’ fees, and court costs.  Under the VPA amendments, there is no right to a trial by jury in any proceeding to obtain, modify, vacate, or extend the restraining order.  An emergency order would be effective for 14 to 21 days and other restraining orders would be effective for a fixed period of time not to exceed a year.

However, the amendments make clear that the restraining order may not be used to restrain workers or organizations from monitoring wage and safety laws, free speech or assembly, or rights under the National Labor Relations Act including lawful picketing.  The amendment also reinforces an employer’s responsibilities under the Victims’ Employment Security and Safety Act (“VESSA”).

Impact on the Workforce

The VPA provides Illinois businesses with the ability to seek judicial protection from violent acts that could result in physical or emotional harm to employees, customers, and guests, and also to avoid damage to property.  This important tool may be used to restrain an employee’s significant other, a disgruntled former employee, or an unruly customer.

Unfortunately, the amendments fail to curtail a labor union’s ability to intimidate or threaten workers who wish to remain union-free or customers who wish to conduct business free of harassment.   Illinois has joined a growing list of states that are tackling the growing need to maintain a safe, non-violent workplace.

Facebook, Twitter, Instagram…Oh My! What Wisconsin Employers Need to Know Before Requesting Access to an Employee’s Social Media Account…

Contributed by Samantha Esmond

On Tuesday, April 8, 2014, Scott Walker, Governor of Wisconsin, signed into law the “Wisconsin Social Media Protection Act.” The act went into effect on April 10, 2014, and places restrictions on the types of information that Wisconsin employers can and cannot seek from employees and/or job applicants regarding their personal social media accounts.

The act prohibits employers from requesting an employee or applicant to grant access to their personal internet account (i.e., internet based accounts created and used by an individual exclusively for personal communications, such as Twitter, Facebook, etc.) and likewise prohibits employers from requesting an employee or applicant to disclose information that would allow access or observation of their personal account. The term “access information” means requesting an employee or applicant’s user name and password, login information, or any other security information that protects access to a personal internet account.

Employers are prohibited from discharging, refusing to hire, or otherwise discriminating against any person who refuses its request to grant access to a personal internet account, for opposing such proscribed practices, or for filing a complaint relating to an improper request. The act provides for the imposition of a $1,000 penalty, in addition to other remedies, for noncompliance.

Right about now you are probably asking yourself – does this act apply to me? The answer is almost certainly, YES! The act broadly defines an “employer” as “any person engaging in any activity, enterprise, or business employing at least one individual,” and specifically includes the state and its political subdivisions. Additionally, the act places similar prohibitions on requests to access of personal Internet accounts by landlords with respect to tenants and prospective tenants and by educational institutions with regard to students and prospective students.

There are several key exceptions in the act, including, among others, that employers may still review information that is publicly available or that can be found in the public domain (i.e., Google). Notably, the act also authorizes employers to continue to conduct investigations, with reasonable cause, relating to the unauthorized transfer of company proprietary, financial, or confidential information or of any other alleged employment-related misconduct. The act further permits employers to require disclosure of access information in order to gain access or to operate an electronic communication device supplied or paid for in whole or in part by the company.

Bottom Line: Wisconsin is the latest state to pass legislation in recognition of the evolving need to update privacy laws to reflect the increased use of social media. Employers should evaluate and update all policies and practices relating to use of electronic communications and devices, internet usage, social media, and even hiring practices to ensure compliance with the act. As with any new law, stay tuned for the latest developments on how this act is enforced and litigated.

 

The Illinois Medical Marijuana Law has Created Smoke Screens for Employers

Contributed by Michael Wong

The Illinois Medical Marijuana Law and its four year pilot program will become effective January 1, 2014.  However, this does not mean employers will be inundated by individuals who are registered medical marijuana users on January 1st.

Under the Medical Marijuana Pilot Program, the Illinois Department of Agriculture, Department of Financial and Professional Regulation and Department of Health have been tasked with developing administrative rules and regulations for the pilot program.  Officials from those departments have just started meeting to discuss drafting the rules and regulations and do not expect to finalize the rules and regulations until May 2014.  Until those rules and regulations are finalized, individuals are not legally allowed to prescribe, dispense or use marijuana, even for medicinal purposes. 

As we previously stated on August 1, 2013, in Caryl Flannery’s article Employers’ Control Over Drug Use Will Not Go Up In Smoke Under Illinois’ Medical Marijuana Law, there are significant exceptions and protections in the law that allow employers to keep control over their workplace.  However, despite the exceptions and protections, the language of the law will still create some issues that employers should be aware of and consider in applying their policies and procedures. 

The law expressly prohibits employers from discriminating against registered users by penalizing them solely for their status as a registered user, unless failing to do so would create a violation of federal law or cause it to lose monetary or licensing-related benefits under federal law or rules.  While employers cannot discriminate based on an individual’s status as a registered user, the law specifically provides that employers may enforce drug testing policies, including zero tolerance and a drug free workplace, provided such policies are applied in a non-discriminatory manner.  Confused yet?  If not, the law goes on to state that it does not create a private cause of action against employers when the cause of action is based on an employer’s “good faith belief” that the employee used, possessed or was impaired by marijuana during working hours.  

In layman’s terms, while employers can still have a zero tolerance or drug free workplace policy, there may be some exposures.  In essence, each situation will likely be treated differently until Illinois courts or the Illinois legislature provide precedent for employers to follow.  Until then, employers should carefully consider and seek legal advice before automatically denying employment to an applicant or disciplining/terminating an employee who is a registered user based on a drug test.

Employers will also have to keep in mind their duty under the Occupational Safety and Health Act (OSHA) of providing a safe work place for all of its employees.  If a registered user is applying for or currently employed in a safety-sensitive position, his or her marijuana use may not be reasonable based on the position.  While there might be uncertainty as to some safety sensitive positions, it is clear that in positions which require federal licensing or regulation, such as commercial driving, it is absolutely unacceptable for employees to use marijuana.  

Even though the Illinois Medical Marijuana Law and its four year pilot program is still in its infancy, employers should be aware of the ways that it can impact their workplace policies and procedures, drug testing policies (zero-tolerance, random and triggering events), hiring practices and other aspects of their business practices.

Protecting Your Workplace Just Got a Little Easier…

Contributed by Julie Proscia

On August 16th, Gov. Quinn signed the Workplace Violence Prevention Act (WVPA or act). The WVPA is effective on January 1, 2014. The legislation applies to employers with five or more employees, and covers the prevention of violence, stalking and harassment. The WVPA allows employers to seek a court order of protection if the business or its employees are threatened by an individual, generally a disgruntled employee.

At least once a week, we counsel and advise employers about the disgruntled employee. It is always a difficult situation; do we keep an abusive employee or let them go and face their wrath? Employers are fearful that if they terminate a disgruntled employee, the individual will return to the business and harm both the people and property associated with the business. Now we work with our clients and local law enforcement agencies to effectuate the smoothest of separations, and try and prevent the individual from entering the property through anti-trespassing measures. We have also successfully fought in the courts for orders of protection. Unfortunately, until this act, there was no cogent statewide legislation for orders of protections that specifically addressed these non-domestic workplace scenarios. This act is meant to resolve this deficiency. As of January 1, 2014, employers who face a credible threat of violence may seek an order of protection to prevent and preclude the individual from entering the workplace and contacting their employee(s).

For an employer to obtain an order of protection under the act, they must show through an affidavit, to the satisfaction of a judge, that there is sufficient evidence that an employee has suffered a threat or there is a credible potential threat that could be faced by the workplace. A credible threat of violence is defined as a statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.

This act does not supplant any current means or methods of seeking protection but gives employers both a shield and a sword to try and prevent workplace violence. In an era where employers are constantly subjected to additional legislation that makes it harder to do business, this is legislation that makes it easier. Put this one in the win column.

Contractors Beware: Strict Amendments to the Illinois Employee Classification Act

Contributed by Jonathon Hoag

House Bills 923 and 2649 were signed into law amending the Illinois Employee Classification Act (IECA), effective January 1, 2014.  The IECA sets forth strict requirements in order to lawfully classify individuals as independent contractors within the construction industry (defined very broadly by the act).  The IECA has been amended to give the Illinois Department of Labor more oversight and authority to enforce this act.  The recent amendments mandate that (1) contractors follow annual reporting requirements when contracting with an individual, sole proprietor, or partnership to perform construction services; (2) add individual liability; and (3) change the department’s method for enforcing the act (i.e. easing enforcement).

Beginning January 1, 2014, contractors that make payments to an individual, sole proprietor, or partnership for construction services must report contact and payment information to the Illinois Department of Labor by January 31 following the taxable year in which payment was made.  The department intends to closely monitor the use of (non-employee) sole proprietors and partnerships in the construction industry.  Contractors that fail to submit required reports are subject to penalties and debarment.

In addition, officers and agents of contractors who knowingly permit the contractor to violate the IECA, or are otherwise considered an employer under the act, are subject to individual liability.  This provision does not apply to contractors primarily engaged in the sale of tangible personal property or doing work for a business primarily engaged in the sale of tangible personal property.

Lastly, the enforcement procedure was drastically amended so that now alleged violations will be prosecuted by the Illinois Department of Labor through an administrative hearing, subject to administrative review in the courts.  Currently, the Illinois Department of Labor’s administrative findings have no significant weight and violations must be proved by the Attorney General in the circuit court.  This change to the enforcement procedure will give the Illinois Department of Labor substantial control and power in how this act is enforced. 

Interestingly, contractors in compliance with the responsible bidder requirements set forth in the Illinois Procurement Code are exempt from these statutory amendments.  There are a number of requirements under the responsible bidder provision of the Illinois Procurement Code, but the one of most significance is the requirement that contractors have an apprenticeship program approved by the U.S. Department of Labor to cover each craft of work performed on the job.  There has been a concerted effort to broaden the application of the responsible bidder requirements to contractors throughout Illinois, and it appears the strategy will be to give contractors who satisfy the responsible bidder requirements special treatment under other Illinois laws.

Employers’ Control Over Drug Use Will Not Go Up In Smoke Under Illinois’ Medical Marijuana Law

Contributed by Caryl Flannery

On August 1, 2013 Illinois Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act making Illinois the 20th state to enact some form of medical marijuana legalization.  The law goes into effect January 1, 2014, but regulations and full guidelines for implementation will likely not be in place until next summer. Proving that patience does have its virtues, Illinois has taken note of the bumps and pitfalls other states have encountered with their medical marijuana programs to craft a law that addresses the concerns of both medical marijuana advocates and employers who value a drug free workplace. 

The four-year pilot program is highly structured. Patients must obtain a registry identification card by submitting applications which include medical documentation of a covered condition; a written certification from a physician with whom the patient has an established relationship; the name of the dispensary the patient will use; a background check; and other identifying information and certifications.  They may purchase only 2.5 ounces at a time, and make purchases at one of 60 highly regulated dispensing outlets. 

While the law states that no employer may refuse to hire nor penalize a person solely for his/her status as a registered qualifying patient, there are significant exceptions and protections to keep employers in control of their workplace: 

  • An employer may refuse to hire, terminate, or otherwise take action against a registered user based on their status if such action is necessary for the employer to follow applicable federal law or to retain a monetary or licensing-related benefit under federal law or regulation;
  • An employer may enact a zero-tolerance, drug testing policy as long as it is applied in a non-discriminatory manner and discipline registered users who violate the policy;
  • Employers may prohibit employees who are registered users from using, possessing, or being impaired by marijuana while on the employer’s premises and during hours of employment;
  • An employer may discipline a registered user who tests positive for marijuana if the employee’s positive status puts the employer in violation of federal law or jeopardizes federal contracts or funding;
  • Employers who observes specific, articulable symptoms (such as unusual speech or actions) may conclude that a registered user is impaired and may take disciplinary action if the employee cannot refute the determination;
  • There is no cause of action against an employer who imposes discipline based on a good faith belief that the registered user was impaired;
  • No health insurance plan is required to cover medical marijuana;
  • Employers may prohibit a “guest, client, customer, or visitor” to use legally prescribed cannabis on or in their property.

Employers should remember that this is a state law only.  Marijuana – prescribed or otherwise – remains a Schedule 1 drug under federal law, which places it in the same category as heroin and LSD.  Possession and distribution of marijuana remains illegal under federal law. 

In the employment context, courts have held that federal employment statutes such as the Americans with Disabilities Act and the Family and Medical Leave Act do not protect or allow for the use of medical marijuana.  Thus, permitting an employee to take breaks to smoke medically prescribed marijuana would not be a reasonable accommodation under the ADA.  Federal agencies that promulgate and enforce employment standards, such as the Department of Transportation, have made it clear that a positive drug test for marijuana is a positive drug test, regardless of the source or reason for the presence of the drug.

Bottom Line:  Employers will not have to significantly alter their policies and programs to comply with the new law and will not be required to permit employees to use or be under the influence of medical marijuana in the workplace.