Category Archives: paid leave

Salary History Inquiry Bill Down But Far From Out

Contributed by Noah A. Frank, September 19, 2017

wage

On June 28, 2017, HB 2462, an amendment to the Illinois Equal Pay Act, passed both chambers of Illinois General Assembly. The bill would have made an employer’s inquiry into an applicants’ wage, benefits, and other compensation history an unlawful form of discrimination. Even worse for Illinois employers, the bill would allow for compensatory damages, special damages of up to $10,000, injunctive relief, and attorney fees through a private cause of action with a five (5) year statute of limitations.

On August 25, 2017, Governor Rauner vetoed the bill with a special message to the legislature that, while the gender wage gap must be eliminated, Illinois’ new law should be modeled after Massachusetts’s “best-in-the-country” law on the topic, and that he would support a bill that more closely resembled Massachusetts’ law.

The bill, which passed 91 to 24 in the House, and 35 to 18 in the Senate, could be reintroduced as new or amended legislation following the Governor’s statement, or the General Assembly could override the veto (71 votes are needed in the House, and 36 in the Senate, so this is possible) with the current language.

Why is this important?

With the Trump Administration, we have seen an increase in local regulation of labor and employment law. This means that employers located in multiple states, counties, and cities must carefully pay attention to the various laws impacting their workforces. Examples of this type of “piecemeal legislation” we have already seen in Illinois and across the country include local ordinances impacting minimum wage, paid sick leave, and other mandated leaves. Additionally, laws that go into effect in other jurisdictions may foreshadow changes at home as well (e.g., Illinois’s governor pointing towards Massachusetts’s exemplary statue).

Had it become law, this amendment would have effective required employers to keep applications and interview records (even for those they did not hire) for five years to comply with the statute of limitations for an unlawful wage inquiry (the Illinois Equal Pay Act already imposes a five year status of limitations for other discriminatory pay practices). By contrast, under Federal law, application records must be kept for only one year from the date of making the record or the personnel action involved (2 years for educational institutions and state and local governments).

What do you do now?

While the law has not gone into effect as of the date of this blog, it is likely that some form of the salary history amendment will ultimately become law in Illinois. Businesses should carefully review their job applications, interview questions, and related policies to avoid inquiries that may lead to challenges in the hiring process.

Additionally, record retention (and destruction!) policies should be reviewed for compliance with these and other statutes – as well as to ensure data integrity and security.

Finally, seek the advice of experienced employment counsel for best practices in light of national trends to remain proactive with an ounce of prevention

White House Proposes Paid Family Leave Plan

Contributed by Suzanne Newcomb, June 12, 2017

The proposed budget released by the White House in May includes a plan to provide new parents with up to six weeks of paid leave to bond with a new child. Obviously the plan is far from becoming law; implementing such a plan would require congressional approval and that process has yet to start. Still, the plan is interesting for its shear breadth and its mode of funding. The plan calls for funding through each state’s unemployment insurance programs. So far at least, there are very few details.

74626995 - page with title parental leave and gavel.

Page with title Parental Leave and gavel

Though many employers choose to provide some amount of paid leave to new parents, only 3 states — California, New Jersey, and Rhode Island — currently mandate paid parental leave for both parents. New York will become the fourth in 2018. All four state plans are funded entirely by employees through mandatory payroll deductions. Paid parental leave legislation was passed in Washington State but the plan has yet to be funded or implemented.

Here is an overview of the benefits provided in each state’s plan:

California became the first state to pass paid family leave legislation in 2002. The law provides for up to six weeks of partial wage replacement to new parents. New parents currently receive 55% of their weekly earnings up to a maximum of $1,173 per week. Amendments set to take effect in 2018 will increase the benefit to 70% of pay for low wage workers and 60% for those earning up to $108,000 annually. Employees in New Jersey enjoy 2/3 of their weekly wage up to $615 per week for up to six weeks, while employees in Rhode Island enjoy up to $817 per week for up to 4 weeks.

New York will join the ranks of states which mandate paid leave for new parents in 2018. Legislation passed in 2016 calls for employees to receive a percentage of the lesser of their own average weekly wage or the NY state Average Weekly Wage. The plan will be phased in with benefits payments increasing over time as follows:

  • January 1, 2018, 8 weeks of benefits paid at 50%
  • January 1, 2019, 10 weeks of benefits paid at 55%
  • January 1, 2020, 10 weeks of benefits paid at 60%
  • January 1 2021, 12 weeks of benefits paid at 67%

In contrast to these plans, the White House plan calls for funding through the states’ unemployment compensation programs which are funded by employers in most states.

SmithAmundsen’s Labor & Employment team will continue to monitor this issue at the state and national level and will keep you apprised of any significant developments.

Cook County Final Earned Sick Leave Rules

Contributed by Noah A. Frank and Sara Zorich, June 8, 2017

sick leave 2

Stamp with the words sick leave next to a thermometer and medicine

With the Cook County Earned Sick Leave Ordinance’s July 1, 2017 effective date around the corner, the Cook County Commission on Human Relations (“CCCHR”) approved its administrative rules on May 25, 2017.

While we previously discussed the Ordinance, one of the most significant aspects of the rules is the new requirement that employers provide covered employees with a notice of their rights under the ordinance at least once per calendar year.

The CCCHR also published a model poster, which must be posted in each place of business where any covered employee works within the geographic boundaries of Cook County.

While the CCCHR has not yet published its rules on the city’s similar Ordinance, we expect the CCCHR’s rules to be instructive and may even be adopted in whole by the Chicago Commission.

Issues to Consider:

While the Ordinance is not yet in effect, the CCCHR already has posted on its website instructions to file a complaint, a complaint intake worksheet, and complaint form!

As such, employers that have not already tackled the Earned Sick Leave Ordinance should implement written policies describing accrual/fronting of leave, carryover, and interaction with other types of leave (e.g., FMLA, PTO / vacation), notice, and business locations subject to the Ordinance. Supervisors should be trained on what notice they may (and may not) require from employees, and identifying trends for abuse of leave.

Employers should also carefully consider whether their timekeeping systems and methods are equipped to appropriately and accurately account for time worked, and the total benefits that have accrued.

Is Your Company Ready For the Chicago and Cook County Sick Leave Ordinances Effective July 1, 2017?

Contributed by Sara Zorich and Beverly Alfon, May 3, 2017

51162387 - calendar on white background. 1 july. 3d illustration.

calendar on white background – July 1

The July 1st effective date of the Cook County and Chicago Sick Leave Ordinances is quickly approaching and employers must review their paid time off, sick and vacation policies now to ensure compliance with the new ordinances. Some of the key similarities and differences of the ordinances’ provisions are highlighted below:

Similarities:

  • Covered Employee – An employee who: (1) works for an  employer at least 80 hours within any 120-day period; and (2) performs at least 2 hours of work in Cook County (or the City of Chicago depending on the ordinance being applied) during any 2 week period — including driving through county (or city) for business purposes.
  • Accrual Rate – Employees earn 1 hour of earned sick leave for every 40 hours they work.
  • Cap – Employees can earn up to 40 hours of paid sick time per 12 month period.
  • Carryover – 20 hours for non-FMLA employers but if the employee is FMLA eligible, an additional 40 hours may be carried over for FMLA purposes only.
  • Permitted Use – Employee’s own or family member’s illness, injury, medical treatment or diagnosis, preventative care; also domestic violence or sexual assault, or public health emergency closure related to child’s school or care facility.
  • Family Member Definition – Employee’s child, legal guardian or ward, spouse, domestic partner, parent, spouse or domestic partner’s parent, sibling, grandparent, grandchild, including step and foster relationships, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
  • Restriction on Use – Generally, only 40 hours of paid sick leave may be used per 12 month period.  However, if the employee is eligible to carry over additional paid sick leave hours for FMLA purposes, up to 40 hours can be used for FMLA purposes only, and an additional 20 hours can be used for other purposes – for a total of 60 hours.
  • Employee Notice to Company – Employers can require the employee to give up to 7 days notice if need for leave is reasonably foreseeable (e.g., prescheduled appointments, court dates). Otherwise, the employee may give the employer notice of the need for leave as soon as practicable via phone, email or text message.
  • Payout – No payout at termination.
  • Posting Requirements – Both written notice with first paycheck after 7/1/17 and poster (to be created by the enforcing agency).
  • Documentation – An employee may be required to provide documentation to support absence of more than 3 consecutive work days.
  • Retaliation – No retaliation for using accrued sick leave under the ordinance.

Differences:

  • Employer coverage is only required if you have a “place of business” in Cook County, whereas in Chicago an employer is subject to the ordinance if they “maintain a business facility” in Chicago or are subject to Chicago’s business licensing requirements. This means that more employers outside of Chicago may be subject to the ordinance solely because they have a Chicago business license.

Key Issues to Consider

Employers must take the time to carefully review their existing policies to determine if their policies are compliant with the new ordinances or if changes need to be made. Issues for the company to consider include:

  • Do you have a paid time off or sick leave policy?
  • Have attendance and administrative processes been updated to reflect the requirements of the law (e.g., receiving notice of unforeseeable leave by phone, email, or text message)?
  • Are federal or local disability laws implicated by an employee requesting or taking leave, or returning to work from leave?
  • What procedures are in place to engage in the reasonable accommodation interactive process?
  • Have employment policies been vetted by experienced employment counsel?

Along with these general issues, there are some “tricky situations” employers with multiple locations must consider:

  • Will the company change its sick policy or create a new policy for all Illinois employees?
  • How to address and track when an employee triggers accrual when that employee’s normal business location is not in Cook County or Chicago?

The Cook County Commission on Human Rights has issued its proposed regulations governing the Ordinance which can be found under downloads on the Cook County website. Any entity can submit comments to the Cook County Commission on Human Rights by mail and/or email (human.rights@cookcountyil.gov) by May 8th.  SmithAmundsen is working on its submission to the commission for clarification of some of the proposed regulations.

It should be noted that certain municipalities have opted out of the requirements of the Cook County ordinance: Barrington, Bedford Park, Elmwood Park, Mount Prospect, Oak Forest, River Forest, Rosemont, Schaumburg and Tinley Park. More municipalities are expected to opt out prior to July 1.

Illinois Mandates Providing Leave to Grieving Parents

Contributed by Nick Kourvetaris, August 5, 2016

14465190 - business man leaving the seatOn Friday, July 29, 2016, Governor Rauner approved Public Act 99-0703, the Child Bereavement Leave Act (likely to be codified at 820 ILCS 154). Without a lot of fanfare or notice, this law became effective immediately upon signature. This law requires employers with 50 or more employees (those subject to the Family and Medical Leave Act) to provide two weeks (10 business days) of unpaid bereavement leave to employees so that they can:

(1) attend the funeral or alternative to a funeral of a child;

(2) make arrangements necessitated by the death of the child; or

(3) grieve the death of the child.

Under the Act, “child” includes a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis.

Of note, the law provides that:

  • Bereavement leave must be completed within 60 days after the date on which the employee receives notice of the death of the child.
  • An employee is required to provide the employer with at least 48 hours’ advance notice of the employee’s intention to take bereavement leave, unless providing such notice is not reasonable and practicable.
  • An employer has the right to request “reasonable” documentation to substantiate the request (e.g., a death certificate).
  • In the event of the death of more than one child in a 12-month period, an employee is entitled to a total of 6 weeks of bereavement leave during the 12- month period.

Fortunately, there is a short window for an employee to file a claim under this Act: 60 days to file a complaint with the Department of Labor or to file a civil action for any violation.  Similarly, an employee may also file a civil action against the employer to enforce the Act. Of course, public outcry to an employer failing to give leave to a grieving parent would likely far outweigh any fine issued by the Department of Labor: (I) up to $500 for a first offense; and (II) up to $1,000 for a second or subsequent offense.

The key takeaway here is that while there is no mandatory notice or posting requirement, employers must nevertheless be aware of this law’s existence should a request be made for such leave and also to prevent unnecessary lawsuits coupled with negative publicity of failing to abide by the law’s mandates. To this end, employers may want to consider drafting a short policy pertaining to this new mandated leave and incorporating it into their Employee Handbooks to alert employees and their supervisors of their responsibilities under company policy and the law.

Additional insights on this new law:

  1. Not only must the Employer be a covered “Employer” under the FMLA, but the Employee must be an “Eligible Employee” under the FMLA to take advantage of this new leave entitlement.
  2. Employee must provide 48 hours advance notice (unless not practicable/reasonable — and it will hardly ever be, realistically, practicable/reasonable).
  3. Employer may require documentation. We advise that the Employer first search online for information relating to the death. If the Employer cannot find anything, then documentation can be requested.
  4. Vacation or paid time off benefits during this unpaid leave of absence shall not be forced on the Employee —  rather, like IL’s VESSA law, electing to use PTO benefits is something the Employee ultimately must decide. NOTE: We usually explain in policies that such PTO will run concurrently with the leave unless the Employee contacts HR or some other contact internally to say otherwise.
  5. We believe the leave can and likely should run concurrently with the FMLA when possible — it’s just good practice. NOTE:  Like IL’s VESSA law, leave taken is NOT in addition to FMLA leave (so if someone uses 12 weeks of FMLA leave for the birth of a child and if the child dies, the Employee is no longer eligible to use the 2 weeks of leave under this new law. Of course, we know of no employer who would take adverse action against an employee who loses a child and needs time away for a week or two. We also know that an employee impacted here would likely have a solid case under the ADA (the emotional pain, anxiety and/or depression that follows in these cases is overwhelming). Also, if an employee uses 2 weeks of leave under this law and the employer did NOT administer FMLA leave concurrently for those 2 weeks, and that employee later adopts a child in the same 12 month time period, then the 12 weeks of leave under the FMLA would still be available.
  6. As with IL’s VESSA law, the employer should define the 12 month period.We advise this period to be defined similar to how the employer defines it under VESSA and the FMLA — a 12 month rolling look back period of time.
  7. There is no posting requirement (yet). We are sure we’ll see one shortly from the IL Department of Labor.
  8. Finally, the IL Department of Labor will be issuing guidance on this through regulations.

FMLA: Employer’s Leave of Absence Form Defeats Former Employee’s FMLA Claim

Contributed by Michael Wong

Under the Family Medical Leave Act (“FMLA”) employees do not have to expressly say they need “FMLA” or otherwise invoke any of its provisions when requesting leave that would qualify under the FMLA. As such, employers have to be vigilant and question whether an employee’s request or need for leave qualifies for FMLA leave.

Absent employeeHowever, employers should know that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014), citing Ridings v. Riverside Med. Ctr., 537 F.3d 755, 769 n. 3 (7th Cir.2008) states that, “If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.”

In the recent case Amstutz v. Liberty Ctr. Bd. of Educ., No. 3:13CV2385, 2015 WL 5254988, (N.D. Ohio Sept. 9, 2015), the District Court for the Northern District of Ohio held that the employee affirmatively declined FMLA leave and thus was not able to pursue any of her FMLA claims against the employer. In Amstutz, the employee requested a week of sick leave for her grandson’s birth. The employee was advised that under the CBA she could only use one sick day and would have to use personal days for the rest of the week. When the week arrived the employee called in sick and said she would be bedridden for the rest of the week. When the employee returned to work she filled out a leave of absence form and provided a doctor’s note. The employer’s leave of absence form included a section that explained FMLA leave and included a checkbox where the employee could request FMLA leave. Instead of selecting unpaid FMLA leave, the employee requested regular paid sick leave.

The Court in Amstutz held that the employee understood FMLA leave as she had taken it before and thus when filling out the leave of absence form she expressly declined FMLA leave by choosing paid sick leave and not checking the box for FMLA leave. The Court further held that since the employee declined FMLA leave, the employer could not have known that she wanted FMLA leave. Therefore, the employer was not obligated to provide her FMLA leave and could not have interfered with or retaliated against her in violation of the FMLA.

The takeaway for employers from these cases is that there are actions that you can take to limit your exposure to FMLA claims through your policies and forms. First and foremost, it is important to have an FMLA leave policy that is understandable and that identifies who employees should talk to in the event of an absence. Next, as demonstrated by these cases, leave of absence forms and other reporting techniques can be used to help in defending against FMLA claims by showing that the employee affirmatively declined FMLA leave.