Category Archives: Uncategorized

More Tweaks to the IL Equal Pay Act

Contributed By Beverly Alfon, July 1, 2021

On June 25, 2021, Governor Pritzker signed into law additional amendments to the IL Equal Pay Act of 2003. 

March 2021 Amendments (Recap)

As outlined in our March 23, 2021 blog article, Will Employers Have to Give 1% of their Total Gross Profits to the State of Illinois? Gov. Pritzker Signs into Law Unprecedented Changes to IL Equal Pay and Corporate Laws, the March amendments to the Act require businesses with 100 or more employees to obtain certification of compliance with the Equal Pay Act from the IL Department of Labor (IDOL).

The certification process requires employers to submit an application that contains a statement affirming compliance with the equal pay principles set forth in Title VII of the Civil Rights Act, the Equal Pay Act of 1963, the IL Human Rights Act, the Equal Wage Act, and the IL Equal Pay Act of 2003. Specifically, the statement must be signed by an officer or agent of the business and confirm the following representations: 

  • The average compensation for the business’s female and minority employees is not consistently below the average compensation for its male and non-minority employees within major job categories when accounting for various distinguishing factors;
  • The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  • The wage and benefit disparities are corrected when identified to ensure compliance with applicable anti-discrimination laws; and

In addition, employers who are required to file a federal EEO-1 report must also include a copy of their most recent EEO-1 report.

June 2021 Amendments

Deadline:  Employers subject to the certification requirement as of March 23, 2021, must apply to obtain an equal pay registration certificate between March 24, 2022, and March 23, 2024. Covered employers that obtain authorization to do business in Illinois after March 23, 2021, must apply for certification within 3 years of commencing operations, but not sooner than January 1, 2024. Recertification must occur every 2 years. 

Certification Application Requirements: Covered employers must also submit a “wage records” list of all employees in the past calendar year, categorized by the county in which the employee works, gender and race/ethnicity with corresponding wages paid to each employee over that period, the employee’s start date with the business, and “any other information the Department [of Labor] deems necessary to determine if pay equity exists.” Employers with fewer than 100 employees must certify that they are exempt from requirements.

Compensation Approach: The original legislative text required employers to provide the IDOL with the “system” used to set compensation and required employers to select from certain options (e.g., market-based, performance pay, internal analysis, etc.).  Under the new amendments, the employer is required to describe the “approach” used to determine wages, but the employer is not required to select from any specific system. Instead, the statute states that “acceptable approaches include, but are not limited to, a wage and salary survey.”

Penalties: The March amendments provided that employers who fail to comply with the certification requirements or provide false information to the IDOL would result in a non-discretionary fine of 1% of their annual gross profits. Now, the Act authorizes a penalty of $10,000 for violation of the equal pay certificate requirements.

Grace Period: There is now a 30-day grace period for an employer to correct an inadvertent failure to timely file an application or cure deficiencies in the application for certification.

Third Party Access:  A current employee of a covered employer may request “anonymized” data regarding his/her specific job classification, including pay rate/salary. “Individually identifiable information” will not be subject to FOIA requests.  The June amendments set forth penalties for IDOL employees who are found to have leaked confidential application information – but the IDOL is authorized to share aggregate data and “individually identifiable information” with the IL Department of Human Rights or Office of the IL Attorney General.

Side note: On June 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it is extending the July 19, 2021, deadline to submit and certify 2019 and 2020 EEO-1 Component 1 reports to Monday, August 23, 2021.

Our recommendations to employers remain the same as set forth in our March 23 blog article: 

  • Review and, if necessary, modify equal pay policies that demonstrate a commitment to IEPA compliance.
  • Audit equal pay compliance annually. This includes creating strong/reliable compensation systems that are in line with the law (base wage, benefits, commission programs and bonus opportunities).
  • Update job descriptions annually. Focus not only on job titles, but the actual duties, responsibilities, and qualifications of the position.
  • Evaluate performance reviews. These continue to be the “kiss of death” for many employers since very few evaluators are willing to be honest and direct.
  • Consider partnering with credible 3rd parties to help design and implement compensation systems in order to comply with all applicable anti-discrimination laws.

July 1, 2021 Increase to Chicago Minimum Wage….But No Change to Cook County Minimum Wage Despite Written Notices

Contributed By Michael Wong and Sara Zorich, June 25, 2021

It’s that time of year (again) for increases in minimum wage. However, this year is slightly different! In spite of the Cook County written notices that some employers may have received, the Cook County Minimum Wage for non-tipped employees is NOT increasing, as the unemployment rate for Cook County during the prior year was greater than 8.5%. However, the Cook County Minimum wage for tipped employees will increase on July 1st  from $6.00 to $6.60 to match the increase under Illinois law. For City of Chicago employers, the minimum wage for both tipped and non-tipped employees will increase on July 1st. To provide a full picture, the following chart shows the minimum wage for Illinois employers as of July 1, 2021:  

*    Increases to match the State minimum wage for tipped employees of $6.60.

** The employer size requirements are modified for small employers of Domestic Workers to $14.00/hr for (0-20 employees) but large employers remain 21+. Thus, any employee working as a Domestic Worker is eligible for the Chicago minimum wage

*** City of Chicago contracts and concessionaire agreements: $14.15 for non-tipped employees and $7.65 for tipped employees.

As a reminder, many municipalities in Cook County opted-out of the Cook County Minimum Wage and/or Paid Sick Leave ordinances. If your business is in Cook County (but not the City of Chicago), you must check whether or not the municipality that you are in opted-out and whether they opted out of both or only one.

REMINDERS:

2020 Change to Definition of Covered “Employer” Under Chicago Minimum Wage and Paid Sick Leave –

On July 1, 2020, the 2019 Amendment to the Chicago Minimum Wage and Paid Sick Leave ordinance, went into effect expanding what employers are covered. The new definition deleted the requirement that an employer have a business facility within the geographic boundaries of the City and/or be subject to license requirements. After July 1, 2020, the Chicago Minimum Wage and Paid Sick Leave ordinances defined an employer as any “person who gainfully employees at least one employee.”

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

As an example of the impact of this is the following scenario: a Colorado business sends its non-exempt employee to New York. The employee’s flight has a 2 ½ hour layover at O’Hare (O’Hare and Midway are both within the geographic boundaries of the City of Chicago). Technically under Chicago’s Paid Sick leave ordinance, the Colorado business would have to record the amount of paid sick leave that the employee accrued during the 2 ½ hours that the employee was “working” in Chicago and would be required to pay the Chicago minimum wage of $15.00/hr for the hours the employee was “working” in Chicago.

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

Chicago Paid Sick Leave Covers Employees in Outside Sales, Members of Religious Organizations, Student Employees of Accredited Illinois Colleges and Universities subject to the FLSA and DOT covered Motor Carriers

The 2019 Amendment to the Chicago Paid Sick Leave Ordinance also made changes to the definition of covered employees. In particular, the amendment specifically states employees covered by the Chicago Paid Sick Leave ordinance (but not the Chicago Paid Minimum Wage) include employees who work in outside sales, for a religious corporation or organization, are a student-employee of an Illinois college or university covered by the Fair Labor Standards Act, or are an employee of a motor carrier covered by the Department of Transportation.

This means that employees who work in outside sales, for a religious corporation or organization, are a student-employee of an Illinois college or university covered by the Fair Labor Standard Act, or are an employee of a motor carrier covered by the Department of Transportation, should be eligible to accrue up to 40 hours of paid sick leave each year under the Chicago Paid Sick Leave ordinance. As the Chicago Paid Sick Leave ordinance has specific requirements regarding accrual rate, carryover, caps, permitted uses, restrictions on use, requesting supporting documentation from employees, and employee notice, it is recommended that you contact experienced employment counsel regarding drafting a policy or questions about compliance.

Remember to Update Your Posters AND Provide written notices to Employees –  

Under the Chicago’s rules, employers have to post the most up to date minimum wage and paid sick leave posters and provide written notices to covered employees each year with the first paycheck after July 1st, whether by paper or electronic means. The City of Chicago posters for Chicago minimum wage and paid sick leave can be found on the City of Chicago webpages for Minimum Wage and Paid Sick Leave in English, Spanish, Polish, Chinese, Filipino and Korean.

Additionally, the Cook County website has posters for Minimum Wage and Sick Leave, but only in English.

The State of Illinois also has its Minimum Wage poster on its website in English or Spanish.

Employers who are unsure whether they must comply, what they must do to comply or are concerned about their policies complying should contact experienced employment counsel to mitigate exposures and minimize risk.

OSHA ETS: What Health Care Providers Need to Know

Contributed By John R. Hayes, June 18, 2021

On June 10, 2021 OSHA issued its COVID-19 Emergency Temporary Standard (ETS) for the health care industry, along with general guidance for all other employers, which we already touched on in a previous post. However, there remains a lot to unpack, as there are many unanswered questions, especially for the health care field.  Below we dig a bit deeper into the ETS and its practical implications for health care providers.

Are you covered? The first question—and it is not as clear cut as it may seem—is whether the ETS applies to your business. OSHA has issued a flowchart to attempt to answer this question. However, it still remains murky for some. Generally, the ETS applies to settings where coronavirus patients are treated (including hospitals, nursing homes and assisted living facilities) and covers “all settings where any employee provides health care services or health care support services.” These are defined as:

  • Health care services are services that are provided to individuals by professional health care practitioners (doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health, and are delivered through various means including hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport.
  • Health care support services are services that facilitate the provision of health care services, which include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, health care laundry services, medical waste handling services, and medical equipment cleaning/reprocessing.

The ETS contains several exemptions to its coverage, and it does not apply to:

(1) the dispensing of prescriptions by pharmacists in retail settings;

(2) non-hospital ambulatory care settings (outpatient settings such as doctor’s offices) where all non-employees are screened before entering and people with suspected or confirmed COVID-19 are not allowed to enter;

(3) well-defined hospital ambulatory care settings and home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings or are not present;

(4) health care support services not performed in a health care setting (off-site services); and

(5) telehealth services performed outside of a setting where direct patient care occurs. 

Moreover, in certain situations, such as where a health care setting is embedded with a non-health care provider (such as a medical clinic in a manufacturing facility), the ETS applies only to the embedded health care setting and not the other parts of the facility. 

Also, in well-defined areas in a health care setting where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present the ETS provisions for PPE, physical distancing, and physical barriers do not apply to fully vaccinated employees. To meet this exception, the COVID-19 plan for the employer must include policies and procedures to determine employee vaccination status.

ETS Mandates. If you are an entity covered by the ETS, then what exactly does it require of you? The main requirements are what you have likely had in place throughout the pandemic:

  • Development of a COVID-19 plan. This applies to all covered employers with 10 or more employees.
  • Provide PPE and ensure employees properly wear facemasks that meet OSHA standards when physical distancing is not possible.
  • Cleaning, disinfecting, installing barriers and maintaining social distancing. 
  • Follow general screening and management practices for COVID-19. 
  • Record Keeping/Reporting. Employers must retain all versions of their COVID-19 plan, log and record each instance an employee is COVID-19 positive whether or not the infection was at work, report each work-related COVID-19 fatality and in-patient hospitalization within 24 hours.
  • Vaccination PTO. Employers must provide reasonable time and paid leave for employees to receive COVID-19 vaccinations and recover from any side effects. OSHA defines “reasonable time” as four hours of paid leave for each dose, and 8 hours of leave for any side effects of the dose.
  • Training on the basics of COVID-19 and employer and workplace specific policies on all other ETS requirements, such as screening, cleaning, and sick leave policies.

Medical Removal Protection (MRP) Benefits. Employers with more than 10 employees must provide paid leave to employees if the employee is removed from the workplace under the ETS – basically if the employee is unable to work due to COVID-19 or COVID-19 exposure, regardless of whether the employee was exposed at work or outside the workplace.

  • For employers with more than 10 but fewer than 500 employees, the employee is entitled to their regular rate of pay, up to $1,400 per week for the first two weeks.  Beginning in the third week, if the removal continues that long, then the employee shall receive two-thirds the rate of their regular pay, up to $200 a day. 
  • For employers with 500 or more employees, the employer must pay up to the $1400 cap each week during the entire period of removal, until the employee meets the return to work criteria, which must be made in accordance with guidance from a licensed health care provider or applicable guidance from the CDC.
  • For all employers with more than 10 employees they must continue to provide the benefits to which the employee is normally entitled.
  • The employer is not required to provide overtime pay, even if the employee had regularly worked overtime hours in recent weeks.
  • The employer may reduce the amount paid to the removed employee by compensation the employee receives for lost earnings from any other source, such as employer-paid sick leave or other PTO.
  • For employers with fewer than 500 employees, tax credits are available under the American Rescue Plan for voluntarily provided COVID-19 sick leave through September 30, 2021.

Implementation Timeline. Covered employers must comply with most provisions of the standard within 14 days of publishing, and with the provisions regarding physical barriers, ventilation, and training within 30 days. OSHA states it will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS. However, OSHA has made no secret it is overall increasing its enforcement, and is encouraging more in-person inspections. Employers who believe they may be subject to the ETS should review it carefully and consult with experienced employment counsel regarding their obligations under the ETS.

Save the Date! Complimentary Webcast June 23: Your Employee Asked to Work Remotely Indefinitely (or Short Term): Important Legal Considerations Before You Say Yes

A year ago we all became a remote workforce almost overnight. Now, while many offices are beginning to open, some employees are asking to remain working remotely. Before saying yes, be sure that you know the right questions to ask to avoid the many landmines that could accompany a continued, remote workforce or even future short-term remote work arrangements.

Join us on Wednesday, June 23 at noon CT as Molly Arranz, Meredith Murphy, Tom Pienkos, and Sara Zorich from our Data Security, Tax, IP, and Employment groups discuss several hypothetical remote work scenarios, lessons learned from the past year and how to troubleshoot potential issues including:

  • On-boarding, Form I-9/E-verify compliance, leave laws and other practical considerations
  • Tax nexus considerations, unexpected cross border (state, local, foreign) taxes
  • Cyber hygiene best practices and the potential, continued data privacy threats when working remotely
  • Business incorporation/licensing for your remote employees
  • Payroll requirements (withholding and unemployment taxes)
  • Workers’ compensation/business insurance
  • Critical agreements that need to be in place for employers to protect their IP and ownership

Nevada Amends Non-Compete Statute To Further Protect Employees

Contributed By Jeffrey Glass, June 1, 2021

employment law books and a gavel on desk in the library. concept of legal education.

Effective May 25, 2021, the State of Nevada enacted amendments to the Nevada Unfair Trade Practice Act that address non-compete agreements. Prior to the new amendments, Nevada law provided that a non-competition covenant is deemed void and unenforceable unless: it is supported by valuable consideration, it does not impose any restraint that is greater than required for the protection of the employer, it does not impose any undue hardship on the employee, and it imposes restrictions that are appropriate in relation to the valuable consideration supporting the non-competition covenant. These provisions of the statute were not amended and therefore these rules still apply in Nevada.

The statute, prior to the recent amendments, also provided that a non-competition covenant may not restrict a former employee from providing service to a former customer or client if the former employee did not solicit the former customer or client, if the customer or client voluntarily chose to leave and seek services from the former employee, and if the former employee is otherwise complying with the limitations of the covenant as to time, geographic scope, and scope of activities restrained. The new legislation amends this provision slightly to provide not only that a non-competition covenant may not restrict this type of activity, but that an employer may not bring an action to enforce such a restriction.  This would appear to be merely a clarification of existing law.

The new legislation also provides for the first time that a non-competition covenant may not apply to an employee who is paid solely on an hourly wage basis, exclusive of any tips or gratuities. This is similar to many states that have sought to ban or severely restrict restrictive covenants for low wage employees.

Prior Nevada law provided that a court “shall” revise an overbroad covenant to render it reasonable.  The new legislation modifies this slightly to clarify that this type of “blue pencil” approach applies where the employer brings an action to enforce the covenant, or where the employee brings an action to challenge it. It also emphasizes that the undue hardship on the employee must be considered. Again, this is a subtle revision that is apparently intended to make sure that the former employee’s interest in avoiding undue hardship is given due consideration by a court interpreting the statute.

The new legislation also contains a new section which provides that, if either an employer or an employee brings an action to enforce or challenge a non-competition covenant, and the court finds that the covenant either applies to an hourly wage employee or attempts to restrict an employee from dealing with former customers whom the employee did not solicit, that the court “shall” award the employee reasonable attorney’s fees and costs. This, too, is similar to legislation that has been passed in other states that seek to level the playing field for the benefit of former employees by providing them with fee-shifting even if the contract does not provide for it.

Overall, the new Nevada legislation makes modest but real improvements for former employees, and follows the clear trend across the country to ban non-competes for low wage employees and give employees the right to recover attorney’s fees in this type of litigation. 

We will continue to monitor legislative developments on non-competes across the country.   

Happy Memorial Day! A Quick Guide for Affirmative Action Programs for Hiring Veterans with Disabilities

Contributed By Allison P. Sues, May 26, 2021

With the upcoming Memorial Day holiday offering an opportunity to acknowledge and appreciate the sacrifice made by military families, it seemed a fitting time to revisit the legal nuances of providing preference in hiring veterans with disabilities. Veterans report high instances of service-connected disabilities, including blindness, deafness, missing limbs, major depressive disorder, and post-traumatic stress disorder. Some laws require employers to provide preference to disabled veterans. Some employers voluntarily create affirmative action programs for veterans with disabilities. Here is what employers should know. 

Can an employer give preference in hiring to a veteran with a disability?

Yes. There is no law that prevents an employer from voluntarily creating a program that gives preference in hiring to qualified veterans with disabilities. Moreover, there are various laws in place that may require an employer to provide affirmative action to veterans. For example, the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) requires all business with a federal contract or subcontract exceeding $100,000 to take efforts to employ and advance veterans with disabilities. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to make reasonable efforts and accommodations to return veterans with service-connected disabilities to their position prior to military service or to help qualify the veteran for a job of equivalent seniority, status, and pay. 

May an employer ask if an applicant is a disabled veteran? 

Yes. While the Americans with Disabilities Act (ADA) generally prohibits employers from making medical inquiries, they may do so for affirmative action purposes. Therefore, an employer may ask applicants to voluntarily self-identify as a veteran with a disability if it is collecting this information to undertake affirmative action required by a veterans’ preference law, or to provide benefits to these applicants through the employers’ own voluntary program.   

If an employer requests that applicants self-identify as a veteran with a disability, the request must clearly state that this information is intended for use solely in connection with its legal affirmative action obligations, or voluntary affirmative action efforts. Employers should also confirm with the applicants that the information will be kept confidential, and that the applicant’s decision to disclose this information is completely voluntary. Keep all records of disability-related information in a separate, confidential file.

What are some steps that employers can take to attract, recruit, and hire veterans with disabilities?

  • Job postings and advertisements may encourage veterans with disabilities to apply and should explicitly state that the organization is an equal opportunity employer.
  • Employers may send job opening information to organizations that job-train veterans and assist veterans with finding employment.
  • Employers may attend job fairs that connect employers with qualified veterans searching for work.
  • Employers should review all language used in job postings to make sure that nothing would dissuade a veteran with a disability from applying. Job postings should not include language calling for “excellent health” or listing required physical abilities if an individual with a disability would be able to accomplish the job function differently through an accommodation.
  • Employers must provide accommodations to veterans with disabilities in the application process where necessary. For example, employers should provide applications and other written materials in an accessible format, whether that be in large print, Braille, or electronically. Employers should also conduct interviews in accessible locations. 

Save the Date! Complimentary Webcast, May 24th: Mask Mandate Mayhem! A Briefing for Confused Employers

On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC guidance, on May 17, 2021, OSHA updated its website to refer business and employers to the CDC guidelines. The door has been opened to employers and businesses to allow employees to be in the workplace without a mask, if they are fully vaccinated, but has not provided any guidance or direction on how to do so, or even made clear that employers and businesses are allowed to.

Moreover, state and local requirements and guidance have had mixed responses to the CDC and OSHA changes. What is expected of businesses and employers at this point is unclear – so what should you do?

Join Mike Wong and Carlos Arévalo on Monday, May 24 @ noon CT for a 30 minute briefing on what to expect in the coming months. Topics will include:

  • Risks of worker compensation claims
  • Reasonable accommodations under ADA and Title VII
  • Navigating federal, state, local, tribal or territorial laws, rules, and regulations

Don’t miss this timely webcast!

UPDATED: I Don’t Want to Wear a Mask…Part 4: OSHA Weighs In!

Contributed By Michael Wong, May 17, 2021

Blue medical face masks isolated on white

***On May 17, 2021, OSHA updated its web page regarding “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” to state the following:

“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

The CDC’s May 13, 2021 guidance “Interim Public Health Recommendations for Fully Vaccinated People” states that fully vaccinated people can “Resume activities without wearing masks or physically distancing, EXCEPT where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. Fully vaccinated people should also continue to wear a well-fitted mask in correctional facilities and homeless shelters. Prevention measures are still recommended for unvaccinated people.”

However, the CDC has not made any changes to its workplace guidance regarding the use of masks. In particular, the CDC still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate”, and does not differentiate between those who have been vaccinated and those who have not. 

Finally, even though the CDC and OSHA have issued this guidance, a patchwork of state and local policies or rules are popping up making it clear that an “across the board” mask-free workplace is not without legal risk for employers.

What does this mean for the workplace?

OSHA’s updated reference to the CDC’s guidance has essentially made this issue a little more clear. In doing so though, OSHA and the CDC has opened the door to employers and businesses allowing employees to be in the workplace without a mask, if they are fully vaccinated, but has not provided any guidance or direction on how to do so. The risk of OSHA issuing a fine or penalty on this issue has been reduced as long as the company is taking common sense steps to protect its employees, which could include (i) requiring verification or confirmation by employees that they have been fully vaccinated before allowing them to be mask free in the workplace; and (ii) modifying guidance to allow employees who have been vaccinated to not wear a mask in the workplace, unless interacting with or in a part of the business where there are customers, clients or the public.

In considering revised policies, employers should remember that there is still risk from workers’ compensation claims. While being vaccinated reduces the possibility of getting COVID-19, if an employee is not wearing a mask in the workplace and gets COVID-19, the employer could still face a workers’ compensation claim that the employee got COVID-19 at work. 

With respect to customers or clients coming into the business, the issue is even muddier, as the CDC and OSHA guidelines are unclear on what is expected of businesses and employers at this point. For example, if a business allows customers or clients into the business without a mask, do they have to verify that they have been vaccinated? Moreover, there is no guidance on what questions a business could ask a customer or client to confirm if he or she has been vaccinated. 

As such, this still means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines.

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies may not have changed.

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place.

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.

For further information on this matter, keep an eye out for our timely webcast, “Mask Mandate Mayhem! A Briefing for Confused Employers” on Monday, May 24th at Noon CT.  

I Don’t Want to Wear a Mask…Part 3: Land of the Mask Free and Home of the Brave

Contributed By Michael Wong, May 14, 2021

Blue medical face masks isolated on white

On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC’s announcement, President Biden lifted the mask mandate that was required by staff and visitors of the White House.  

While the CDC has issued this guidance, a patchwork of state and local policies or rules are popping up making clear that we are not going to be mask free quite yet. More importantly, the CDC’s announcement contained a big “EXCEPTION” by stating “except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local businesses and workplace guidance.”

To be clear, the CDC has not made any changes to its workplace guidance regarding the use of masks. The CDC guidance still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate.” More importantly though for employers, OSHA still states that employers and businesses should require the use of face masks and emphasizes that “employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious harm. In fact, President Biden’s “lifting of the mask mandate” for staff and visitors could potentially be considered a violation of CDC and OSHA guidance regarding workplaces.

Employer and business compliance with CDC and OSHA Guidelines is still very important, especially with the potential for fines. Recently, OSHA issued a $136,532 penalty and citation to a Massachusetts company for prohibiting employees and customers from wearing face coverings in the workplace and requiring employees to work within six feet of each other and customers for multiple hours while not wearing face coverings, finding that the company’s actions put its employees safety at risk of recognized hazards that are causing or likely to cause death or serious physical harm.

The issue gets even more complicated at the state and local level. Some states, including New York, New Jersey, North Carolina, and Maine, have advised that they will not be modifying their mask mandates at this time. Many other states, including Illinois, Kentucky, Minnesota, Nevada, Oregon, Pennsylvania, Connecticut, and California have begun adjusting their mask mandates and guidance (including setting dates for them to tentatively end).  While other states, including Alabama, Arkansas, Iowa, Mississippi, Montana, New Hampshire, and Texas, have already rescinded their statewide mask mandates. To make things even more confusing, even in the states that have rescinded the state wide mask mandates, some local governments have maintained mask mandates including those for employees and/or customers. Then to make it even more unclear, Indiana just passed a law stating that the decision regarding masks is now controlled by city councils and mayors/elected officials and not local health officers. At least one county in Indiana, Marion County, which covers Indianapolis and its surrounding suburbs, has already had its City Council vote to continue its mask mandate.

What does this mean for businesses?
This means that businesses must still require employees to wear masks in the workplace and must still require customers coming into the business to wear masks unless otherwise allowed by state or local guidelines, and even then you are still required to comply with OSHA requirements.

This also means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines. Moreover, as OSHA has now made clear by fining businesses, there are repercussions for employers and businesses violating the face mask requirements and guidance. 

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies have not changed. This is vitally important to avoid “viral videos” of confrontations as businesses will no longer be able to point to a presidential mandate or executive order to validate mask policies. Rather, businesses will have to educate employees and customers on federal, state and local requirements and guidelines for businesses and make clear that the “mask free” announcement for those with vaccinations are limited to public and social activities and not so much the workplace, business interactions and shopping. 

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place. 

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.

IDOL on the PROWL: Looking At Non-Union Contractors to Debar for Technical Violations of the Illinois Prevailing Wage Act

Contributed By Jeff Risch and Peter Hansen, May 7, 2021

hand signing contract on white paper

Contractors beware – the Illinois Department of Labor (IDOL) has ramped up audits of contractors as labor unions and related organizations flood the IDOL with “complaints. Remember, under the Illinois Prevailing Wage Act (IPWA), a prevailing wage “complaint” need not be verified or even submitted to the IDOL under penalty of perjury. The IDOL will investigate each and every “complaint” regardless of merit and, while historically the main focus of the IDOL was to ensure proper and full payment of the actual prevailing wage, it is now seeking to issue violations and debar contractors for technical violations (i.e. failure to post rates or provide written notice to contractors or lower tiered contracts).

Typically, debarment from contracting for public works (for up to 4 years) occurs only after the IDOL issues two distinct formal written notices of IPWA violations to a contractor within 5 years. Until recently, the IDOL considered the severity of the violation, the contractor’s history, and whether the contractor generally complied with other IPWA obligations before issuing a violation notice. The IDOL is now moving towards a philosophy of issuing a formal notice of violation for technical violations – especially when it comes to non-union contractors.

The IDOL’s increased activity is exceptionally troubling for all contractors given the IPWA’s broad definition of “violation” under its Administrative Rules. Pursuant to the IDOL’s prevailing wage rules, a violation occurs whenever the IDOL determines that the contractor:
• failed to pay the prevailing wage to one or more employees performing work covered under a public works contract;
• failed to keep, produce, or submit accurate records demonstrating compliance with the IPWA;
• refused to comply with the certified payroll filing obligations (this now requires the use of the IDOL’s own online electronic portal system);
• refused to allow the IDOL’s access to inspect the contractor’s records;
• failed to insert a written stipulation that prevailing wage rates be paid into each subcontract and into the project specifications;
• failed to obtain a bond guaranteeing performance of the prevailing wage clause (when required by the public body to do so); or
• failed to post or communicate to the workers the applicable prevailing wage rates on the public works project site.

There’s clearly a lot of room for the IDOL to issue violation notices for technical violations that have nothing to do with the actual payment of the prevailing wage to the worker. The IPWA arguably has the most complex and administratively burdensome laws in the country. That’s on purpose!

All contractors must be acutely aware of the IDOL’s increased audit activity – and unprecedented scrutiny. And, in light of Springfield’s allegiance to organized labor these days, non-union contractors are in particular need to be doing everything possible to make certain they are complying with the IPWA’s technical requirements, beyond the payment of the actual prevailing wage.