Last month, the U.S. Citizenship and Immigration Services released a new version of the I-9 Employment Eligibility Verification form. Employers must use the new form starting September 18th. The new form includes some revisions to the instructions, as well as to the list of Acceptable Documents. For more information on the new form, please visit the USCIS website at https://www.uscis.gov.
Earlier today, U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s informal guidance on joint employment and independent contractors issued during the Obama administration. The announcement states that the withdrawal does not “change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act” and that the DOL “will continue to fully and fairly enforce all laws within its jurisdiction.” We will keep you updated on any additional word from the DOL on these issues, but it appears that by withdrawing these guidelines, the new administration is taking a first step away from attempts of the Obama administration and the NLRB to expand concepts of joint employment.
With the July 1st effective date quickly approaching, more and more suburban communities are opting out of the Cook County minimum wage hike and paid sick leave requirements. Home Rule authority allows these local municipalities to opt out of and craft their own legislation to supersede the county legislation.
Nearly 40 municipalities have officially opted out or are expected to do so before the July 1st effective date, including: Arlington Heights, Barrington, Bedford Park, Buffalo Grove, Elk Grove Village, Elmwood Park, Glenview, Hanover Park, Hoffman Estates, Mount Prospect, Niles, Northbrook, Oak Forest, Palatine, Palos Park, River Forest, Rolling Meadows, Rosemont, Schaumburg, Streamwood, Tinley Park, Western Springs, and Wheeling.
It’s important to note that even if an employee is based in a municipality that has “opted out,” if they are performing work in Chicago or a section of Cook County that hasn’t opted out, the employee may still have a right to some paid sick leave.
Before moving forward with changes to comply with these new Cook County requirements, make sure to check where your municipality stands.
Yesterday, 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.
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.
Last 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.
Tracking 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.