Labor & Employment Law Update

Perhaps now more than ever before, a person’s political stance on the most hotly debated issues is so strongly tied to their personal identity. This is exactly why employers cannot ignore the real likelihood that political expression will seep into the workplace.

As legalization of cannabis has spread, profits have grown in the 25 states that allow for the retail sale of cannabis for recreational use, and labor unions have found great opportunity for getting a lift from the cannabis industry -- no pun intended.  Eight of those 25 states have passed legislation that encourage or even require cannabis industry employers to enter into labor peace agreements (LPA), often referred to as “neutrality agreements,” with labor unions, as a condition of obtaining or renewing a cultivation or dispensary license.

The recently overhauled paid leave ordinances in Illinois include: Illinois Paid Leave For All Workers Act (effective January 1, 2024), Cook County Paid Leave (effective February 1, 2024) and the City of Chicago Paid Leave (effective July 1, 2024)/City of Chicago Sick Leave (amended) (effective July 1, 2024). Compliance is going to require more than an updated leave policy, so it is important to review your policies and practices to make sure you are compliant.

Join Sara Zorich and Beverly Alfon as they provide a timely webcast, where attendees will learn about this new law, how to ...

On January 10, 2024, the U.S. Department of Labor (DOL) published its Final Rule on the standard for determining who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule is set to take effect on March 11, 2024.

Background

The FLSA provides wage and hour protections to “employees” that do not apply to “independent contractors,” including minimum wage and overtime minimums. Accordingly, misclassification of workers has been and continues to be a major focus of the DOL. In light of the potential economic impact that changes to ...

With the January 1, 2024, effective date of the Illinois Paid Leave for All Workers Act (IPLAWA) quickly approaching, employers need to ensure they are analyzing their existing paid leave policies to determine what changes need to be made before the end of 2023.

This summer seemed to fly by as quickly as the Illinois Legislature and Governor J.B. Pritzker enacted a dizzying slew of more new employment laws between the months of June and August. These changes are sweeping and require your attention now.

The Chicago Human Rights Ordinance makes it a civil rights violation “[f]or any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment.”  Municipal Code of Chicago, 6-010-040. As we previously discussed in a blog, last year, Chicago’s City Council amended the Chicago Human Rights Ordinance by expanding the definition of sexual harassment and adding various requirements related to harassment prevention training, policy, postings and recordkeeping.

Dust off your severance agreement template, again. This applies to all private employers – whether you have a unionized workforce or not. 

While we continue to absorb the impact of the National Labor Relations Board’s recent expansion of its authority to include awards for consequential damages in unfair labor practice (ULP) cases, there are  other significant pro-union decisions and directives that need to be on your radar. 

On October 11, 2022, the U.S. Department of Labor (DOL) announced that it is proposing to do away with the existing independent contractor test that the Trump administration slipped into place in January 2021, in favor of a shift back to a “totality of circumstances” analysis.

Recently, the 4^th Circuit U.S. Court of Appeals issued a decision that expanded protections under the Americans with Disabilities Act (ADA) to people with gender dysphoria. While the case at issue was not employment-related, the implications of the decision are significant for all employers because it strengthens support for claims of ADA protection for individuals with gender dysphoria within the scope of employment, public accommodations, and government benefits and services.

Late last week, NLRB General Counsel Abruzzo issued yet another memorandum that she identified as an “Update on Efforts to Secure Full Remedies in Settlements.” She congratulated the Regional Directors for an “excellent job” implementing settlements in line with her September 2021 directives. The memorandum listed the various examples of the new make-whole remedies that Regions have secured through settlement agreements.

Board diversity requirements have hit the headlines again due to a recent ruling by a California Superior Court judge who struck down a 2020 California law (AB 979) that required companies headquartered in California to have from one to three board members who self-identify as a member of an “underrepresented community,” which includes Asian, Black, Latino, Native American, and Pacific Islander individuals, as well as those who are gay, lesbian, bisexual or transgender. It allowed the Secretary of State to fine companies who did not comply. The court found for the plaintiff ...

It depends where you stand. Here are some of the latest updates –

California:  Yesterday, Governor Gavin Newsom signed a bill  that restores the expired supplemental paid leave requirements that he signed into law back in March 2021. In a nutshell, beginning February 19 (retroactive to January 1, 2022) and continuing through  September 30, 2022, California employers with more than 25 employees must provide up to two (2) weeks of paid COVID-19 leave to employees who are unable to work or telework due to COVID-19 reasons:

1. First bank of hours:  An employee can receive up to 40 hours of ...

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 ...

COVID-19 Pandemic Allows Unions to Make Inroads with Health Care Workers

For health care workers, the issues of staffing, wages and benefits are typically what unions have focused on in their organizing campaigns. Against the backdrop of the COVID-19 pandemic, these issues are heightened with the added urgency of worker safety. The realities created by the pandemic have and will likely continue to make their impact on health care workers – even prompting some who never may have considered union representation – to reconsider their position. For example, in ...

The Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 Component 1 Online Filing System is set to open on Monday, April 26, 2021. Private employers with at least 100 employees, and federal contractors with at least 50 employees and a contract worth $50,000 or more, must file their EEO-1 data for years 2019 (previously postponed due to the COVID-19 pandemic) and 2020, by Monday, July 19, 2021. Employers will be required to first file for 2019, then file for 2020 – after the 2019 report is submitted and certified.

As a reminder, EEO-1 reports require data from a ...

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

National Labor Relations Board (NLRB)

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

In a decision issued yesterday, General Motors LLC, 369 NLRB No. 12 (2020) , the National Labor Relations Board declared that “[it] will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.”

Prior to yesterday’s decision, employees who engaged in obscene, racist, and sexually harassing speech in the course of activity otherwise protected by the NLRA, were protected by various setting-specific standards that provided leeway to ...

If your “essential” workforce is not already organized, consider this your wake-up call. 

As this pandemic has worn on, and more “essential workers” have fallen ill to COVID-19, labor unions have become noticeably more active. Just last Monday, the AFL-CIO filed suit in federal court to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard, aimed at forcing the agency to mandate certain safety actions by employers. 

Noticeably, the rhetoric from the AFL-CIO has been focused on “all workers” as opposed to “their ...

While most employers do not take issue with CDC and OSHA recommendations related to hand washing, sanitizing, personal protective equipment (PPE), or even employee screening – the  social distancing aspect of these guidelines often provoke the greatest resistance from manufacturing employers:  “We’re just not set up to operate that way.”

Over the last few weeks, we have all seen the headlines regarding Smithfield, JBS, and Tyson.  The meat processing plants have become alleged hot beds for COVID-19, leading to plant closures.  Last week, Smithfield workers sued the ...

Businesses with a unionized workforce need to consider whether their responses to the COVID-19 pandemic constitute unilateral changes under existing work terms and conditions. An employer’s duty to bargain in good faith with its employees’ union encompasses many obligations, including the duty to not make certain changes to work terms and conditions without bargaining with the union. While a union is not likely to bring an unfair labor practice charge against an employer for “benevolent” unilateral changes, a union generally has a solid basis to bring an unfair ...

The U.S. Senate unanimously passed the CARES Act, and it is up for vote TODAY before the U.S. House of Representatives, with a promise of swift passage. You need to pay attention. This is about more than emergency relief.

Look at page 524 of the bill, which would apply to any mid-sized business that takes a loan under this Act:

“Any eligible borrower applying for a direct loan under this program shall make a good-faith certification that— ….

(X) that the recipient will remain neutral in any union organizing effort for the term of the loan.”

This means that if you employ between 500 ...

The National Labor Relations Act (NLRA) requires employers with a unionized workforce to bargain in good faith with the union over mandatory subjects of bargaining (e.g., wages, hours, and other terms and conditions of employment). The duty to bargain continues during the term of a collective bargaining agreement (CBA) with respect to mandatory subjects of bargaining that are not covered by the agreement.  An employer who makes unilateral changes to these terms without satisfying its bargaining obligations violates the Act, unless it can establish a valid defense.  Until now ...

Did you know that when a private sector employer has evidence that a union has lost support from a majority of its bargaining unit members, the employer can refuse to recognize the union as their bargaining representative?  In 2001, the National Labor Relations Board (NLRB) ruled that employers can unilaterally withdraw recognition from an incumbent union based upon “objective evidence” (typically, a petition signed by at least half of the bargaining unit members indicating that they no longer wished to be represented by a union) that the union has lost majority support ...

As we draw closer to the end of 2018, let’s reflect a bit and look forward with purpose.  The U.S. Equal Employment Opportunity Commission (EEOC) recently released preliminary FY 2018 sexual harassment data that is consistent with the #MeToo movement:

• Sexual harassment charges increased by more than 12 percent – the first increase in at least eight years;

• EEOC focused on harassment claims and filed 66 harassment lawsuits; and

• EEOC recovered nearly $70 million for sex harassment victims (up from $47.5 million in 2017).

These statistics do not include the many charges that ...

The National Labor Relations Board (NLRB) is taking more steps towards positive, significant change for private-sector employers:

Joint Employer Standard

CURRENT LAW:  The Board may find that two or more entities are “joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.”  Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). The primary inquiry is whether the purported joint-employer possesses ...

Employers have had reason to exhale a bit in the Trump era of the National Labor Relations Board (NLRB). However, as demonstrated in a recent case involving employee Weingarten rights, long-standing federal labor principles and facts can nonetheless tilt a decision against the employer.

A Quick Refresher:  The term “Weingarten rights” refers to the rights of union-represented employees to demand union representation during an employer’s investigatory interview that may result in discipline (as opposed to a meeting where discipline is simply being issued to ...

As most turn their thoughts to love and romance this Valentine’s Day, we remind you of the potential liability that Cupid’s arrow may unleash. In this post-Weinstein and #MeToo period, the thought of office romance may catapult an employer into sheer panic. Although a recent CareerBuilder survey indicates that office romance is at a 10-year low, the stats are still telling: 36% of workers admitted to having dated a colleague in the past year. Of workers who had an office romance, 30% dated someone in a higher position. Yikes. A soured relationship at work can result in a ...

Eight states, the District of Columbia, and more than 30 municipalities have enacted laws mandating differing paid leave requirements. Localities such as New York and San Francisco, have enacted some of the most aggressive sick leave requirements in the country. Employers doing business within the City of Chicago have also been left to deal with a trifecta of sick leave laws in 2017:  the IL Employee Sick Leave Act, the Cook County Paid Sick Leave ordinance, and the City of Chicago paid sick leave ordinance. All of this has resulted in an administrative nightmare for employers ...

Much has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies that have, for many years, raised no issues or controversy, to be violative of the National Labor Relations Act (NLRA).

Last year, the NLRB struck down various policies in a handbook issued by T-Mobile, including one that encouraged employees to be professional and maintain a “positive work environment” in T-Mobile USA, Inc. v. NLRB, No. 16-60284 (5th ...

Imagine that in order to increase time and attendance record accuracy and efficiency, you have invested in a new biometric time clock system. This makes good business sense and overall, it is a straightforward issue…until HR tells you that an employee has refused to use the time clock for religious reasons.

In U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc., (4^th Cir. June 12, 2017), a coal mine worker who was a practicing evangelical Christian, refused to use a hand scanner time clock because he believed that it would “mark” him with the sign of the ...

Recently, there has been much discussion about the composition of the five-member board in Washington, D.C., including President Trump’s appointment of Philip Miscimarra as National Labor Relations Board (NLRB) Chairman, and the expected shift from pro-labor initiatives – especially in light of the expiring term of the NLRB General Counsel who was appointed by President Obama. The NLRB recently issued an order that may be a sign of things to come.

On May 5, a divided NLRB denied the NLRB General Counsel’s motion for summary judgment (a request for judgment as a matter of law ...

The July 1^st 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 ...

When a change of ownership occurs for a business that employs individuals who are represented by an incumbent union, the new owner must be aware of the National Labor Relations Board’s (NLRB) successor bar doctrine.  It used to be that following a sale or a merger of a business, there was a window of time during which employees, the new employer, or a rival union, could challenge a union’s majority status as representative of those employees. However, in 2011, the NLRB modified the doctrine in UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011), holding that for stability, the new ...

On February 6, 2017, the newly elected GOP Governor Eric Greitens, signed into law a right-to-work (RTW) bill that passed the state’s Republican-controlled state legislature.

Nuts and Bolts of the Missouri RTW law

• Effective date:  August 28, 2017
• Who it applies to:  Both private and public sector employers (except those in the airline and railroad industries, as well as certain federal employers).
• What it prohibits:
  • No employee can be required to become or remain a union member as a condition of employment.
  • No employee can be required to pay dues, fees or assessments of any kind to ...

The Department of Justice (DOJ) and Federal Trade Commission (FTC), the agencies that jointly enforce antitrust law, issued an “alert” last month: “Antitrust Guidance for Human Resources Professionals.” The guidance is aimed at HR professionals in order to put them on notice regarding employer hiring and compensation practices that may violate antitrust laws. There are two main points:

1. “No-Poaching” agreements (agreements not to recruit certain employees) and wage-fixing agreements (agreements not to compete on terms of compensation) between employers are ...

Last week, the Cook County Board passed a paid sick leave ordinance that requires most employers in Cook County to provide paid sick leave for their employees. It will take effect on July 1, 2017 and basically mirrors the requirements of a City of Chicago paid sick leave ordinance that passed earlier this year.

The county ordinance requires a covered employer to provide to eligible employees up to 40 hours (5 work days) of paid sick leave in a 12-month period. The 12-month period begins as soon as the covered employee begins employment or July 1, 2017, whichever is later. 

Coverage ...

In the past week, the Securities and Exchange Commission (SEC) twice flexed its muscle in the arena of employee rights – taking specific aim at severance agreements that require departing employees to waive their rights to collect whistleblower awards.

Background

Severance Agreements: For many companies, it is standard practice to present departing employees with voluntary severance agreements that set out the terms of the termination of the employment relationship.  Often, these include a monetary payment from the employer in exchange for a waiver and release of various ...

For more than 75 years, employers have had broad access to a powerful weapon to counterbalance a union’s ability to engage in an economic strike: the right to permanently replace those economic strikers. On May 31, however, the National Labor Relations Board (NLRB) replaced that powerful weapon with a water gun. In a 2-1 decision, the NLRB held that despite the economic nature of a strike, an employer violated the National Labor Relations Act (NLRA) by permanently replacing strikers because the employer was motivated by “a purpose prohibited by the Act.” American Baptist ...

On April 26, the 4^th Circuit of the U.S. Court of Appeals joined other federal circuits that have upheld NLRB approval of “micro-units.” See, Nestle Dreyer’s Ice Cream Co. v. NLRB, No. 14-2222 (4^th Cir. Apr. 26, 2016). This is another boost for unions because micro-units ease their path into industries and business that have been difficult for them to organize in the past.

How do micro-units help unions and hurt employers?  When a union files a petition with the NLRB to represent a group of employees, a larger unit is generally favorable for an employer because it is more ...

Sure, you’ve heard that non-union employees are protected by the National Labor Relations Act (NLRA), too. But do you realize just how quickly the protections of the Act can come into play?  If your front line managers are not properly trained, an employee’s attitude could quite literally turn a situation into a federal case.

A federal appeals court recently affirmed the decision of the NLRB against an employer in a case where a non-union employee engaged in conduct that most employers would consider as straight up insubordination, Staffing Network Holdings, LLC v. NLRB, 2016 BL ...

A federal appellate court unanimously found that an individual’s difficulty with lifting his right arm above his shoulder, constituted a disability under the ADA Amendments Act of 2008, which amended the Americans with Disabilities Act of 1990 (ADA), Cannon v. Jacobs Field Services North America, Inc., Case No. 15-20127 (5^th Cir., 1/13/16).

In this case, a construction firm offered the plaintiff, Michael Cannon, a job as a field engineer. Cannon participated in a pre-employment physical, which revealed a rotator cuff injury. The doctor cleared him for work, but only with ...

A couple of months ago, we discussed the National Labor Relations Board’s (NLRB) startling decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), in which it determined that a non-union company shared joint employer liability, under the National Labor Relations Act (NLRA), with a labor contractor at one of its recycling plants. The Board held that two or more entities are joint employers if each one possesses sufficient control over employee’s essential terms and conditions of employment. Employers were in an uproar over the decision ...

Union job targeting programs, also known as “market recovery funds,” are used by unions to provide a bidding advantage to union contractors. As part of these programs, unions collect voluntary deductions from members’ wages, which are then used to subsidize union contractors’ bids on building projects. With the union subsidy, the union contractor is able to successfully bid on projects that may otherwise go to nonunion contractors. The subsidy further allows employees to be paid at union scale, rather than the lower wages set forth in the contractor’s bid. These ...

In a recent decision, Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds, 362 NLRB No. 155 (Aug. 4, 2015), the National Labor Relations Board (NLRB) held that an employee’s posting of a written warning at his cubicle was protected, concerted activity. The employee, Frederick Allen Moss, received the written warning from his supervisor for refusing to stop using his electronic tablet during a work meeting. In response, Moss laminated a copy of it and posted it next to his computer so that it was visible to anyone who entered his cubicle or stood at the ...

In a 2-1 decision, the National Labor Relations Board (NLRB) issued a decision against an auto dealer, finding that the company violated the National Labor Relations Act (act) by implementing and maintaining: (1) a 2010 social media policy that required employees to identify themselves when posting comments about the company, its business, or a policy issue and prohibited employees from using the company’s logo in any manner; and (2)  a 2010 dress code policy that prohibited employees from wearing pins, insignia or other message clothing.  Boch Imports, Inc., 362 NLRB No ...

Despite labor’s historical stronghold in the Midwest – Indiana, Michigan, Iowa, Tennessee and now, Wisconsin – have become Right-to-Work (RTW) states.  Is Illinois next?  What does this mean for employers?

RTW In a Nutshell: Money and Power

In the 25 states that have not passed RTW laws, including Illinois and Missouri, a union security clause in a collective bargaining agreement requires all employees in the bargaining unit to either be a dues/fee-paying union member – or a non-member who pays “fair share” fees.  The battle is over the non-member “fair share” ...

Treat each other with dignity and respect.  Do not harass one another.  They seem innocuous enough.  However, the NLRB may deem these common rules unlawful, if they are implemented or more strictly enforced following protected activity, such as a strike or an election, or in the context of unfair labor practice charges filed against an employer.  In Care One at Madison Avenue, 361 NLRB No. 159 (Dec. 16, 2014), the board held that an employer violated the law by posting a memorandum shortly after a union election, urging employees to treat each other with “dignity and respect” ...

Six months ago, the NLRB held (on remand from the Ninth Circuit) that an employer violated the National Labor Relations Act by firing an employee even though he called his supervisor a “[multiple expletives deleted]“  and even threatened that if he was fired, the boss would “regret it.”  Plaza Auto Center, Inc., 360 NLRB No. 117 (2014).  That decision left many employers exasperated, and still does.  Recently however, the board issued a decision that confirms that even this pro-labor board recognizes that some employee conduct falls outside the protections of the National ...

One week before an election to decertify Teamsters Local 734 as the bargaining representative of drivers at LaBriola Baking Co., the company held a mandatory meeting for its drivers to make a final push against continued union representation.  At the meeting, the company’s Chief Operating Officer spoke about the upcoming election.  The COO said in English, “If you choose union representation, we believe the union will push you toward a strike.  Should this occur, we will exercise our legal right to hire replacement workers for the drivers who strike.”  Roughly 80 percent of the ...

The labor world is abuzz about “micro-units” as a result of two recent National Labor Relations Board decisions regarding Union petitions to represent such “micro-units” of employees:  Bergdorf Goodman, 361 NLRB No. 11 (July 28, 2014) and Macy’s, Inc., 361 NLRB No. 4 (July 22, 2014).

What is a micro-unit and why does it matter?

A “micro-unit” is a small and discrete subset of employees at a particular worksite, which a union seeks to represent.  It is the opposite of a “wall-to-wall unit” that would encompass the majority of an employer’s non-supervisory ...

If you are an employer, the latest rash of formal agreements between the National Labor Relations Board (NLRB) and various government agencies (local, state and national) warrants some real attention.

Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), announced that it will start advising employees who fail to timely file whistleblower retaliation complaints under OSHA that they may still have time to seek relief under the National Labor Relations Act (NLRA).  While Section 11(c) of the OSH Act only allows 30 days for an employee to ...

This should be an easy one to cross off your to-do list.  Dust off the confidentiality and non-disclosure language that you require your non-supervisory employees to adhere to – whether through a specific agreement, employee handbook or general company policy.  Last week, the U.S. Court of Appeals for the Fifth Circuit served up a reminder that what used to be considered standard language regarding an employer’s expectation of confidentiality, now opens the door to potential liability under federal labor law, for both union and non-union employers.

In Flex Frac ...

A few weeks ago, the Seventh Circuit federal appellate court (Illinois, Indiana and Wisconsin) held that an employee’s absence from work was protected by the Family Medical Leave Act – even though she was on vacation with her terminally ill mother in Las Vegas.   Ballard v. Chicago Park District, Case No. 13-1445 (7^th Cir. Jan. 28, 2014).

There was no question that Ballard provided daily care to her mother.  However, when she requested FMLA leave to travel with her mother to Las Vegas, Ballard’s employer denied the request.  Ultimately, the employer terminated her for the ...