This week twenty-one states filed an emergency motion for a nationwide injunction to block the new overtime regulations that are set to go into effect on December 1st. However, as we’ve previously reported, the success of this and other efforts to stop or delay the regulations is far from clear. Unless and until one of these efforts is successful, companies should move forward with their planning and make sure that they are prepared to be in compliance on December 1st.
Cook County has now joined the City of Chicago by passing a paid sick leave ordinance. The Cook County Earned Sick Leave Ordinance, passed on October 5th, mandates that covered employers in Cook County, Illinois, allow eligible employees to accrue one hour of paid sick leave for every 40 hours worked, up to 40 hours of paid sick leave in each 12-month period of their employment. The Ordinance becomes effective on July 1, 2017, although, as noted below, suburbs have the ability to opt out of the ordinance and some may elect to do so.
Individuals are entitled to benefits under the Ordinance if they:
- perform at least two hours of work for a covered employer while physically present within the geographic boundaries of the County in any particular two-week period; and
- work at least 80 hours for a covered employer in any 120-day period.
Covered employers are those with a place of business within Cook County that gainfully employ at least one covered employee. The Ordinance does not apply to collective bargaining agreements in force on July 1, 2017.
Employees can use paid sick leave:
- for their own illness, injuries, or medical care (including preventive care);
- for the illness, injuries, or medical care of certain covered family members;
- if the employee or a family member is a victim of domestic violence or a sex offense; or
- if their place of business or the child care facility or school of their child has been closed by an order of a public official due to a public health emergency.
Carry Over, Restrictions on Use, Notice, Termination
Under the Ordinance, employees may carry over half of their unused paid sick leave (up to 20 hours) to the next 12-month period.
Covered employers are permitted to set reasonable minimum increments for the use of paid sick leave, not to exceed four hours a day.
Employers may require that employees provide up to seven days advance notice if the need for paid sick leave is foreseeable. If the need for leave is unforeseeable, employees must provide as much notice as is practical. The Ordinance states that employees may notify their employers of the need for leave by phone, email, or text message.
The Ordinance further provides that unused, accrued sick leave does not need to be paid out upon termination or separation of employment.
If a covered employer has a policy that allows employees paid time off in an amount and a manner that meets the requirements of the new Ordinance, the employer is not required to provide any additional paid leave.
Employers with operations in Cook County should review the specifics of the Ordinance and ensure compliance. At the same time, employers should also keep an eye out for paid sick leave-related resolutions in the particular suburb in which they operate. According to an opinion by the Cook County State’s Attorney’s office, suburbs may opt out of the requirements of the Cook County Ordinance, and many suburbs are already in the process of passing resolutions that will exempt their local businesses.
On September 29th, the Department of Labor released its final rule requiring federal contractors to provide their employees with at least 1 hour of paid sick leave for every 30 hours of work, up to a maximum of 56 hours (7 days) per year.
The rule officially implements President Obama’s 2015 executive order. Once formally published in the Federal Register (which is expected to happen in the next few days), the rule will go into effect 60 days after publication. Federal contractors should take note and ensure compliance with this rule.
Congress has joined the fight in trying to stop or delay the Department of Labor’s new overtime regulations. This week, the U.S. House of Representatives voted 246 to 177 to delay the effective date of the DOL’s overtime rule by six months until June 1, 2017. This bill faces an uphill battle — first having to pass the Senate and then a very likely Presidential veto.
Given that the bill is unlikely to become law, and given the questionable future of pending court challenges, employers should continue to prepare for the new regulations to be effective on December 1st. We will continue to monitor these challenges and keep you apprised.
The Equal Employment Opportunity Commission (EEOC) has released its final Enforcement Guidance on Retaliation and Related Issues. While the guidance doesn’t create any new law, it serves as a good reminder of the position the EEOC takes on such claims. Here are a few highlights from the Guidance:
- Retaliation can exist even when no official employment action against the employee is taken. For example, it could be retaliation because of the employee’s EEO activity for an employer to:
- reprimand an employee or give a performance evaluation that is lower than it should be;
- transfer the employee to a less desirable position;
- engage in verbal or physical abuse;
- threaten to make, or actually make reports to authorities;
- increase scrutiny;
- spread false rumors, treat a family member negatively; or
- take action that makes the person’s work more difficult.
- The EEOC makes clear that an employer cannot retaliate against an employee for raising Americans with Disabilities Act (ADA) rights, and cannot interfere with ADA rights by doing anything that makes it more difficult for an applicant or employee to assert these rights.
- The Guidance contains an entire section entitled “Examples of Facts That May Defeat a Claim of Retaliation.” This section includes examples such as poor performance, inadequate qualifications, negative job references, misconduct, reductions in force or downsizing, as well as others.
- The Guidance includes a list of suggestions that the EEOC believes may reduce the risk of retaliation violations:
- Implementing a written anti-retaliation policy;
- Training all supervisors on the anti-retaliation policy;
- Providing advice and individualized support for those who could be in a position to retaliate and those who could be in the firing line for retaliatory action;
- Proactively following up after protected activity or opposition has taken place; and
- Reviewing your internal employment actions to ensure full compliance with the EEOC laws on retaliation.
We encourage all employers to review the Guidance carefully to make sure that their current policies and practices are compliant. Employers should pay particular attention to the EEOC’s suggestions on practices that may reduce the chances of retaliation, as implementing and enforcing these may help to protect employers from potential retaliation claims.
Illinois employers should be aware of two new leave-related laws.
First, the Child Bereavement Leave Act, which took effect on July 29, mandates that Illinois employers with at least 50 employees provide employees who suffered the loss of a child with up to two weeks (10 work days) of unpaid leave. Leave can be taken to attend the funeral, make arrangements necessitated by the death of the child, or to grieve the death. If an employee has already used all of his or her 12 weeks of available FMLA leave, the employer does not need to provide the additional 10 days for reasons related to the death of a child. Employees may elect to substitute available paid leave, but employers may not require them to do so.
Second, the Employee Sick Leave Act, which takes effect on January 1, 2017, provides greater flexibility to family caregivers. The Act requires Illinois employers who provide employees with paid sick leave to allow their employees to use that time to care for the employee’s immediate family members, parents-in-law, grandchildren, or grandparents. Employers must allow employees to use sick leave for caregiving just as they do for their own illness or injury, though employers may cap the amount of sick leave to be used for caregiving responsibilities at what the employee would have earned during 6 months. The Act does not extend the maximum period of leave under the FMLA, regardless of whether the employee receives sick leave compensation during that leave.
Illinois employers should review bereavement and sick leave policies to make sure that they are compliant with this new legislation.