Articles Posted in Employment Law

Over the coming weeks and months, employees will begin returning to work in increasing numbers across the state. As they do, employers will find themselves facing unique challenges created by the risk of workplace exposure to COVID-19. Potential transmission of COVID-19 by employees can create liability concerns for employers. The primary concern for employers is whether they will be entitled to the tort immunity typically provided by workers’ compensation laws in light of the unique nature of the COVID-19 pandemic. Far from being just a hypothetical concern, the first workplace COVID-19 exposure case in Illinois was filed a few weeks ago by the estate of an employee who passed away from complications of COVID-19.

Under many states’ workers’ compensation statutes, a claim under the state workers’ compensation system is the exclusive remedy for an employee who suffers a work-related injury. This is often referred to as the “workers’ compensation bar” or “exclusivity bar” and represents a trade-off for employers and employees. For employees, workers’ compensation laws make it easier for employees to recover from employers for workplace injuries. Many workers’ compensation laws are no-fault laws, meaning the employer must cover the employee’s injury even if it was not at fault for causing the injury. In exchange for lowering the threshold for recovery, the workers’ compensation laws usually prevent employees from suing their employer for additional compensation under a different legal theory for workplace injuries. Continue reading ›

Though it has been months since the initial cases of people being infected with Coronavirus Disease 2019 (COVID-19) surfaced, many employers in the United States still find themselves unprepared to respond to a local outbreak of the coronavirus. While Illinois and Chicago health officials seem sure that there is no indication of an Illinois outbreak any time soon, employers would be wise to begin preparing a response to an outbreak now rather than waiting until after one occurs. Any outbreak response plan must ensure compliance with the requirements of federal, state, and local employment and sick leave laws and ordinances, including special duties that may be triggered only during public health emergencies.

Can employers ask employees suspected of having or being exposed to the coronavirus to stay home?

Employers are under a general obligation to protect their employees from known hazards. In certain circumstances, this may include the coronavirus. However, employers must take care to establish policies that are nondiscriminatory and are not applied selectively or arbitrarily. Employers should not act on mere suspicion when asking an employee to stay home but should be able to articulate an objective basis for the suspicion (and document it) before asking an employee to stay home.

As the CDC and WHO have often reiterated, the best way to prevent the spread of the coronavirus is to quarantine infected individuals to prevent the spread of the virus and contact with the uninfected. In the workplace, this means employers should actively encourage sick employees to stay home as soon as they suspect being exposed to the virus, even before they begin displaying symptoms. Employers would be wise to also remind sick employees of any rights that they may have to paid time off when sick or caring for sick family members. If an employee is displaying symptoms of an acute respiratory illness such as fever, cough, or shortness of breath, employers can ask the employee not to return to work until he or she has been without a fever for no less than 24 hours.

Employers should also consider halting non-essential work-related travel, particularly to countries known to be coronavirus hotspots such as China, Italy, Japan, or South Korea. If an employee has recently returned from such a country, an employer should consider asking the employee to self-quarantine and work from home for up to 14 days, which is the virus’s estimated incubation and transmission period. Continue reading ›

After a group of students who were part-time library employees of the University of Chicago attempted to unionize, the University fought the organization attempt. The students won before the National Labor Relations Board, but the University refused to bargain with the students’ chosen representatives. The students and their union sued, and the 7th Circuit affirmed the issuance of an enforcement order by the NLRB.

In May 2017, the International Brotherhood of Teamsters Union Local No. 743 filed a petition with the National Labor Relations Board. Local 743 sought to represent for collective bargaining purposes a unit of part-time student employees of the University of Chicago Libraries. The University responded with a “statement of position.” In it, the University contended that the proposed unit of student employees was not appropriate for collective bargaining. The University gave three reasons, one of which was that the students were temporary employees who did not manifest an interest in their employment terms and conditions that were sufficient to warrant collective-bargaining representation.

The University followed a procedure set out in 29 C.F.R. § 102.66(c) to submit an “offer of proof” – a description of the evidence the University would present to the Board to show that student employees were not entitled to collectively bargain. At a pre-election hearing on May 17, 2017, the Board’s hearing officer explained that after reviewing the proposed evidence and testimony that the University would put on to support its arguments, the Board would not take evidence because the evidence proposed and the testimony all dealt with established Board law.

The Board’s regional director echoed the hearing officer’s assessment, concluding that the evidence was insufficient to sustain the University’s contentions. The regional director ordered an election for the representation of the unit proposed by Local 743. The University asked the NLRB to stay the election and review the regional director’s decision. The Board denied that request, concluding that the facts asserted in the University’s offer of proof were insufficient to warrant the conclusion that the library clerks should be deemed ineligible as temporary or casual employees. Continue reading ›

The restaurant industry has long been a notorious boys’ club, full of misogyny and sexual harassment. With men maintaining most of the power in the industry, women didn’t feel like they had a choice other than to put up with the constant groping and harassment from both male staff and patrons, but a new settlement in a New York sexual harassment case might change all that – or at least move the needle in the right direction.

At the end of 2017, the New York Times reported on multiple allegations made by 11 women working at the Spotted Pig in Manhattan that the owner of the restaurant, Ken Friedman, had repeatedly groped and sexually harassed them. The plaintiffs also allege that Friedman fostered a sexist environment in which they constantly felt unsafe and unwelcome and that he retaliated against them when they tried to speak out against the mistreatment.

The New York State attorney general’s office investigated the matter and recently ordered Friedman to pay the 11 plaintiffs a combination of $240,000, to be split among them and paid out over the next two years, as well as 20% of all his profits from the restaurant over the next ten years, including any money he makes off the sale of the restaurant (of which he currently owns 75-80%) if he decides to sell it. The women are unlikely to see any money from his profits since the restaurant has been in the red for a while, but the almost quarter-million-dollar settlement is nothing to sneeze at. Continue reading ›

On December 4, 2019, Illinois Governor JB Pritzker signed into law Senate Bill 1557. This new law contains various amendments to the Illinois Cannabis Regulation and Tax Act (“Cannabis Act”), 410 ILCS 705/1 et seq., and provides clarity regarding the interplay between the Cannabis Act and the Illinois’ Right to Privacy in the Workplace Act (“Right to Privacy Act”), 820 ILCS 55/1 et seq.

The Cannabis Act legalized (under state law) the adult-use of cannabis recreationally and goes into effect January 1, 2020. The Cannabis Act does not interfere with employers’ drug-free policies but instead expressly provides that employers are free to adopt reasonable zero-tolerance or drug-free workplace policies, provided that the policies are applied in a nondiscriminatory manner. In addition, the law provides that employers have the right to discipline or terminate an employee for violating a workplace drug policy.

As originally written, uncertainty remained concerning whether employers could discipline or terminate an employee pursuant to post-offer, pre-employment positive drug test, or even pursuant to a post-accident or random positive drug test. Much of the confusion was due to recent amendments to the Right to Privacy Act, which prohibit an employer from disciplining an employee for use of “lawful products” while off duty.

The recent amendments to the Right to Privacy Act deemed “lawful products” to include products that are lawful under state law, which effective January 1, 2020, would include cannabis used recreationally. This led to a possible interpretation that would create a cause of action for applicants who tested positive for cannabis at the post-offer, pre-employment stage because any such use would have been off-duty, in direct violation of the Right to Privacy Act. Continue reading ›

A retailer’s plan for calculating commissions for its sales associates did not violate the Illinois Wage Payment and Collection Act because the relevant portion of the statute concerned only deductions from an employee’s wages, and not the method used to calculate the employee’s gross pay prior to deductions.

The Tile Shop, LLC sells tile and related materials and accessories. It operates 128 retail stores across 31 states. Each store employs a manager, one or two assistant managers, and a staff of sales associates. Sales associates and assistant managers are primarily responsible for sales. The Tile Shop pays its sales associates and assistant managers pursuant to a “Sales Associate Pay Plan.” The company gives prospective employees a copy of the plan with its offer letter. The plan explains how the company compensates its sales staff, primarily through commissions but also with bonuses on sales of certain products and periodic incentives. The Shop pays employees on a semimonthly basis. Continue reading ›

In what is expected to shake up the entire “gig” industry in California, Governor Gavin Newson recently signed into law a bill that rewrote the rules of employment law as it relates to using independent contractors in California. The new law, known as Assembly Bill (AB) 5, is expected to grant hundreds of thousands of workers new job benefits and pay guarantees across numerous industries including ride-hailing companies, trucking, janitorial services, nail salons, adult entertainment, construction, media, and healthcare.

Assembly Bill 5, which curbs businesses’ use of “independent contractors,” gained final approval in the state Senate and state Assembly, largely along partisan lines. Independent contractors, some of whom work for multibillion-dollar technology companies, are generally not covered by minimum wage, overtime, sick leave, family leave, or workers’ compensation laws. Nor do businesses pay into Social Security or Medicare for the independent contractors they retain. Continue reading ›

On July 31, 2019, Illinois Governor J.B. Pritzker signed into law HB834, which amends the Illinois Equal Pay Act by restricting employers’ ability to inqure about or use pay history in hiring and compensation decisions. Illinois becomes the eleventh state to enact legislation prohibiting salary history inquiries by private employers. Other states like Michigan and Wisconsin, however, have gone the opposite way passing legislation prohibiting local governments from enacting salary history inquiry ban laws. The No Salary History law, will take effect by October 1, 2019, giving employers just 60 days to adjust their policies and hiring procedures to ensure compliance with the new law.

Since 2003, the Equal Pay Act has prohibited Illinois employers from paying employees who perform “substantially similar work” different pay rates based on their sex or race, though employers are free to pay employees of different sexes or races differently provided that the pay differential is based on factors other than sex or race.

Under the amendments, employers may no longer screen job applicants by requiring that their current or past salary “satisfy minimum or maximum criteria; or to request or require such wage or salary history as a condition of being considered for employment.” Continue reading ›

The government enforces a separation of church and state, but what about a separation of church and employer?

Joel Dahl, who founded and runs Dahled Up Construction, requires all his workers to attend Christian Bible Study as a condition of continued employment.

Ryan Coleman, a convicted felon, said attending Bible study was not a condition of employment for the first month that he worked as a painter for Dahl. When it became mandatory, he attended for almost six months, afraid his felony conviction would prevent him from getting another job. When he finally said he wouldn’t attend the Bible study anymore, he was fired.

Coleman was disappointed, having just received a pay raise two weeks beforehand. He also loved his job, claiming he was excited to get up and go to work in the morning, and realizing how lucky he was to be one of the few people who could say that.

Coleman, who is half Native American, told Fox News that Christianity just wasn’t for him. Continue reading ›

Although the number of women attending law school has outnumbered the number of men attending law school for several years now, it seems those women have a harder time climbing the corporate ladder than their male counterparts once they graduate from law school. According to a recently proposed class action lawsuit against Jones Day, the law firm allegedly maintains a fraternity-type culture that consistently treats men better than women – especially women who are pregnant and/or already have children.

The proposed class action gender discrimination lawsuit was filed by Andrea Mazingo, Nilab Rahyar Tolton, and four other women who have chosen to remain anonymous, on behalf of all female associates who are working for or have worked for Jones Day in Irvine, California. Despite the fact that the firm hires the same number of male and female associates, their situations allegedly vary drastically once they get the job. Female associates are allegedly paid less than their male counterparts and are significantly less likely to make partner. The law firm also allegedly has a practice of regularly firing women who get pregnant and retaliating against women who speak up.

By contrast, the lawsuit alleges male associates were consistently mentored, groomed for partnership, and given better assignments and more access to clients than their female counterparts. Mazingo alleges she was encouraged to wear high heels, another plaintiff claims she was told to smile more, and another was allegedly referred to as “eye candy.” Continue reading ›

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