7th Circuit Extends Title VII Protection To Sexual Orientation

gavelpictureYesterday, the Seventh Circuit became the first federal appeals court to extend protections of Title VII to discrimination on the basis of sexual orientation. The decision gives an Indiana professor, as well as other gay, lesbian, and bisexual individuals, the right to sue under Title VII over discriminatory employment practices based on their sexual orientation. According to the Court, “… it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex …”

This landmark decision is critical support for the EEOC’s interpretation that Title VII prohibits discrimination on the basis of sexual orientation and gender identity.  It also increases the likelihood that the Supreme Court will decide whether Title VII does, in fact, prohibit discrimination on these grounds.  Until the Supreme Court rules, however, employers in Illinois, Wisconsin and Indiana should consider the risk of sexual orientation or gender identity discrimination claims under Title VII (in addition to claims under applicable state and local laws prohibiting such discrimination) when making employment decisions.  We will keep you posted on further developments relating to this issue.

 

 

Paid Sick Leave Coming in Q3

We’re only a few days into Q2, but we wanted to make sure that you’re prepared for a significant legal change that is effective at the beginning of Q3.  Starting July 1st, employees who work in Cook County will have a right to paid sick leave under the Cook County Earned Sick Leave Ordinance, the Chicago Paid Sick Leave Ordinance or both. 

On their surface, the requirements of the Ordinances seem pretty straightforward, leaving many companies to believe that their current PTO or sick leave policy meets the new standards.  However, most of the policies we’ve reviewed to date don’t meet all of the new standards.  This is largely because the Ordinances:

  • Apply to all employees – including part-time employees – who work at least 80 hours in any 120 day period.
  • Allow the employee to carryover up to 20 hours of paid sick leave into the next year (up to 60 for employers that are covered by the FMLA).
  • Require that paid sick leave may be used not just for the employee or a family member’s illness or injury, but also to seek medical care or to care for a family member, in the event that the employee or a family member is the victim of domestic violence, or in the event that the workplace or the employee’s child’s school or place of care is closed due to a public health emergency.
  • Provide that an employer can’t require a note unless the employee is out for more than 3 consecutive days or more.
  • Put limitations on the notice employers can require from employees, including allowing employees to provide last minute notice by phone, email or text.

There are also a couple provisions in the Ordinances that help employers – including capping accrual at 40 hours per year, capping use at 40 or 60 hours per year (depending on the size of the employer and the reason for leave), and not requiring payout on termination.  However, to take advantage of these employer-friendly provisions, it’s important to reflect them in your policy. 

Both Ordinances provide that employees who don’t receive the paid sick time the Ordinances require can file suit and collect triple damages.  We expect Plaintiffs’ attorneys to be out in force looking for potential class actions, so it is important that every company that employs workers in Cook County have their policy reviewed in advance of the July 1st implementation deadline.  Because of the number of sick leave policies we’ve already seen, we are able to review current policies and prepare compliant policies efficiently, on a flat fee basis.

Labor & Employment Practice Group Leader Laura Friedel is available for questions about how these ordinances might affect your company’s policies.

 

Supreme Court To Determine Permissibility of Class Waivers In Employment Arbitration Agreements

pillarsLast month, the Supreme Court agreed to resolve a circuit split over whether class action waivers — mandating that any claims brought against the employer be brought individually rather than as a class — contained in employment arbitration agreements violate employees’ rights under the National Labor Relations Act. The Court recently announced that it would decide the highly-anticipated case in its 2017 term, beginning in October. Both the Seventh and Ninth Circuits have struck down class action waivers in arbitration agreements. The Fifth, Second, and Eighth Circuits have held the opposite. We will update when the Supreme Court has made its decision. In the meantime, companies should consider the rule in their circuit before rolling out new employment arbitration agreements.

 

Employee GPS and Location Data Protected

Businessman texting at sidewalk cafeTracking employee work time is a constant challenge for employers, especially when the employees are not physically working in one location. Unfortunately, at least one court has found that employers can’t use personal cell phone GPS data to establish employees’ hours of work.

A federal district court in Indiana recently held that an employer could not use sales representatives’ GPS data from their personal electronic devices — which were used for both work and personal purposes — to defend an FLSA overtime suit. In this case, the employer wanted to compel the sales representatives to disclose GPS and location data from their phones to show when they were and were not working. The court denied the employer’s request, expressing concern that disclosing GPS data from a personal device would result in tracking the employees’ movements well outside of their working time, which would violate personal privacy standards.

This case serves as a great reminder that employers need to find methods of accurately tracking employee work time without relying on data from personal devices.

EEOC Speaks On Mental Health

EEOC LOGOThe Equal Employment Opportunity Commission (EEOC) recently published an informal publication outlining the rights of employees who suffer from depression, post-traumatic stress disorder (PTSD), and other mental health conditions under the Americans with Disabilities Act (ADA). Although nothing new per se, the publication serves as a great reminder as to the rights of employees with mental health conditions. The guidance addresses the following topics:

Discrimination. An employer may not discriminate against an employee — which includes firing, rejecting for a job or promotion, and forcing to take leave — simply because he or she has a covered mental health condition or has asked for a reasonable accommodation.

Privacy/Confidentiality. An employer may only ask medical questions (including questions about mental health) in the following situations:

  • When an employee asks for a reasonable accommodation.
  • After it has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
  • When it is engaging in affirmative action for people with disabilities, in which case an employee may choose whether to respond.
  • On the job, when there is objective evidence that an employee may be unable to do his or her job or that the employee may pose a safety risk because of the condition.
  • To establish eligibility for benefits under other laws, such as the Family and Medical Leave Act (FMLA).

If an employee informs an employer about a condition, the employer cannot discriminate against the employee, and it must keep the information confidential.

“Substantially limiting” condition. A condition does not have to be permanent or severe to qualify. What matters is that the condition — when the symptoms are present —  makes activities more difficult, uncomfortable, or time-consuming.

Reasonable Accommodation. The guidance encourages employees to ask for a reasonable accommodation before any problems occur or become worse. The EEOC gives the following examples of reasonable accommodations:

  • Altered break and work schedules (e.g., scheduling work around therapy appointments);
  • Quiet office space or devices that create a quiet work environment;
  • Changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them);
  • Specific shift assignments; and
  • Permission to work from home.

The guidance notes that where an employee cannot perform all the essential functions of the job and no paid leave is available, an unpaid leave may be a reasonable accommodation if the leave will help the employee get to a point where he or she can perform those functions. Remember that an employer must provide a reasonable accommodation unless it involves substantial difficulty or expense.

Harassment. The guidance reiterates that harassment based on disability is prohibited under the ADA, and that employees should follow employers’ reporting procedures to report any harassment.

We suggest that you review the guidance and make sure that your current policies and practices comply.

 

 

2017 Labor & Employment Law Checklist

checkEach year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find our 2017 Labor and Employment Law Checklist to be a helpful guide to best practices for the year ahead.

Download the checkable PDF here. Print it out for yearlong reference, or get started right away and enjoy the satisfaction of checking some very important items off your list.

Make sure sick leave is available to care for family members.  Under Illinois’ new sick leave law that went into effect January 1, employers that provide paid sick leave for an employee’s own illness or injury must also permit their employees to use that time to care for a family member with an illness or injury.  Other new Illinois laws require that employers with 50 or more employees provide up to 10 days of unpaid leave to an employee who loses a child, and that most employers provide 4 weeks of unpaid leave to address issues related to domestic or sexual violence (greater leave is provided if an employer has more employees).  It is important to confirm that your leave policies and practices reflect these new requirements.

Be ready for new paid leave laws.  Beginning July 1, 2017, employees working in Cook County and the City of Chicago will be entitled to paid sick leave. The rules around the paid leave are somewhat complicated, with different accrual rates and carryover requirements, as well as additional paid leave entitlements when the leave is covered by the FMLA.

Be careful with “No-Fault” and Point Systems.  The laws and ordinances discussed above also prohibit retaliation against employees who take covered leave, which could expose employers who use a “no-fault” or points-based attendance system to liability.  If you use this type of attendance policy, it is important to ensure that time off covered by leave laws is not counted as a point or absence for disciplinary purposes.

Use the revised Form I-9.  There is a new, revised Form I-9 that must be used for all new hires (and any form updates).  The new form may be found at https://www.uscis.gov/i-9.

Don’t require “low wage employees” to sign non-competes.  The Illinois Freedom to Work Act prohibits employers from imposing non-compete agreements on any employee who makes $13 per hour or less. Non-solicitation agreements for low wage workers were not specifically addressed in this new law, but they will likely be a topic of future litigation. Although only law in Illinois, employers in other states should be wary of requiring low-wage workers to sign non-compete agreements, as it has been a hot topic across the country.  For instance, the New York Attorney General has been extremely critical of non-competes for low-wage employees and has publically announced various monetary settlements with employers who require low-level employees to sign non-competes as a condition of employment.

Make sure you are including “magic language” in confidentiality and trade secret agreements.  The Defend Trade Secrets Act of 2016 provides employers with new tools to protect against employees taking or misusing trade secrets.  But to take full advantage of the tools the Act offers, you must include a “notice-of-immunity” in any new or updated agreements with employees, consultants, or independent contractors that govern trade secrets or confidential information. If you have not already done so, you should revise your standard agreements and confirm that any agreement signed on or after May 11, 2016 includes the required notice-of-immunity.

Review and update social media policies and practices.  The Illinois Right to Privacy in the Workplace Act already prohibited employers from soliciting information to gain access to an employee’s social media account.  However, with amendments that became effective on January 1, the law’s reach has been extended to cover all personal online accounts and to specifically prohibit employers from taking steps that would give the employer access to employee accounts.  The amendments don’t prohibit employers from monitoring employees’ activity while at work but do set requirements for how any prohibited information inadvertently obtained is handled.  It is important that you review existing internet and social media policies and practices to make sure that they are in line with these new requirements and that you ensure managers, human resources personnel and IT staff are aware of these standards.

Analyze corporate wellness programs.  The EEOC issued corporate wellness program rules this past year that allow limited incentives for employees and spouses to participate in such programs, but that also include important privacy protections. Review any corporate wellness programs to ensure compliance with the new rules.

Understand and follow new OSHA rules.  While it is not yet clear whether the new administration will be enforcing OSHA reporting rules, the new rules regarding electronic submission of injury information are effective.  This means all employers with 250 or more employees, and employers with 20 or more employees in certain industries, are required to submit certain information electronically for posting on OSHA’s public website. The new OSHA rules also prohibit retaliation against employees for reporting work-related injuries or illnesses, and require employers to inform their employees of their right to report work-related injuries and illnesses free from retaliation.

Consider how marijuana is handled under drug policies.  As more and more states are legalizing marijuana use, whether recreational or medical, it is critical to understand the specifics of the laws in the states in which you operate and review and update your drug and drug testing policies accordingly. 2016 saw new medical marijuana laws passed in Arkansas, Florida and North Dakota, and recreational marijuana legalized in Maine, Massachusetts, and Nevada.  However, marijuana use remains unlawful under federal law.

Watch for state action to implement failed FLSA overtime regulations.  The DOL’s new overtime rules that were scheduled to take effect on December 1 were blocked.  However, some states have indicated that they plan on implementing the now-defunct proposed federal regulations (which would have raised the minimum salary threshold for the white-collar exemptions to $913/week) on the state-level.  Keep an eye on state law to make sure you’re ready for any changes that will impact your company.

California employment agreements can’t choose a different law or venue.  If you have California employees, be aware that a law signed in September 2016 prohibits the use of provisions in employment contracts that would either apply another state’s law or would require that any claims be litigated outside of California. This new standard applies to contracts entered into, modified or extended on or after January 1, 2017.  California also passed protections relating to arbitration.

New Minimum Wages. More than 75% of U.S. states have increased the minimum wage for 2017.  Some of these increases are due to inflation, but others are more targeted – including an increase by $1.95 per hour in Arizona.  Massachusetts now has the highest state minimum wage – at $11 per hour – but many municipalities have minimum wages that are even higher.

Make sure you are complying with new state and local laws.  State legislatures were very busy in 2016, resulting in many new laws for 2017.  On the immigration front, Tennessee recently joined eight other states (AL, AZ, GA, LA, MS, NC, SC and UT) in requiring mandatory use of E-verify for most private employers, while California has implemented new protections for employees around the documentation presented to establish eligibility to work in the U.S.  Both California and Massachusetts passed new equal pay laws, with the Massachusetts law being the first ever to prohibit inquiries into past compensation before an offer is made.  Several states also implemented new laws relating to background checks (CA, CT, VT), access to personnel files (CO, OR), and weapons in the workplace (MO).  And this is just a sampling.  Make sure that you keep abreast of legal developments in the areas where your company operates so that you can comply with these standards.

Revised Form I-9 Issued — start using no later than January 22, 2017

United States FlagThe U.S. Citizenship and Immigration Services (“USCIS”) has issued a revised Form I-9. The new form, which was released in both a smart digital version and a paper version, can be found at https://www.uscis.gov/i-9. The revisions to the digital version include, among other things, drop-down lists and calendars, and embedded instructions for completing each field. Employers must start using the new form no later than January 22, 2017. With USCIS’s recent announcement that fines for I-9 violations will significantly increase, we encourage employers to start becoming familiar with and using the new forms as soon as possible.