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2019 Newsletters
These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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DECEMBER 2019
Inside This Issue
1. Illinois Human Rights Act (IHRA) and Workplace Transparency Act (WTA)
2. Illinois Biometric Information Privacy Act (BIPA) Now Used Frequently
3. Illinois Passes the Artificial Intelligence Video Act
4. Illinois Attorney General Act Amended
5. Employers are Prudent to Address Notices Assessing Withdrawal Liability under ERISA
6. NLRB Reverses Its 2015 Opinion as to Collection of Dues Check-Off Monies
7. NLRB Finds Confidentiality Rules are Generally Lawful
8. NLRB Returns to Old Rule that Employees Cannot Use Company E-mail for Organizing or Other Purposes
9. Illinois Minimum Wage Laws
10. New Chicago Ordinance Requires Employers Give Employees Advance Notice of Their Schedules
Illinois Human Rights Act (IHRA) and Workplace Transparency Act (WTA)
Effective January 1, 2020, the IHRA will apply to all Illinois employers regardless of employment level. This is one of the many changes in the WTA which affects the IHRA. Under the WTA employers will be liable for harassment of non-employees at the workplace and prohibits certain types of confidentiality agreements. Aggrieved parties can now file a charge of discrimination within 300 days of the alleged act, up from the 180-day deadline. Remedies include back pay and benefits, expungement, compensatory damages, reinstatement, front pay, benefits and attorney’s fees and costs. Punitive damages are unavailable.
The WTA also requires annual sexual harassment training. Employers can use the materials developed by the Illinois Department of Human Rights (IDHR) or its equivalency.
The IHRA has a new definition of “pregnancy” which includes “pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth.” The accommodation provisions extend to all employers regardless of number of employees or hours worked. Reasonable accommodations include, but are not limited to: more frequent or longer bathroom breaks, breaks for increased water intake and periodic rest, a private non-bathroom space for breastfeeding and expressing breast milk, seating, help with manual labor, light duty, temporary transfers to less strenuous or less hazardous positions, accessible worksites, the acquisition of new equipment or modification of existing equipment, job restructuring, part-time or modified work schedules, modification of examinations, updated training materials or policies, a reassignment to a vacant position, time off to recover from childbirth and leave required by the employee’s pregnancy, childbirth or related conditions.
A pregnant employee must agree to the accommodation. An employer may not force a pregnant employee to accept an accommodation. An employer can, however, require medical proof of a need for an accommodation from the employee’s healthcare provider.
The “undue hardship” rules have been changed to make it extremely difficult to plead undue hardship for an accommodation.
You are reminded that Chicago, Champaign, Decatur, Peoria, Rockford and Springfield, as well as Cook County, have their own non-discrimination and affirmative action ordinances.
Note: Our September 2019 Newsletter addressed other aspects of WTA.
Illinois Biometric Information Privacy Act (BIPA) Now Used Frequently
BIPA was passed in 2008 and was rarely used by employees as a tool until very recently. BIPA regulates a private entity’s collection, use, storage and transmission and destruction of biometric identifiers, such as retina, iris scans, voice prints, hand and facial scans.
Section 15 of BIPA prohibits private entities from collecting a person’s or customer’s biometric identifier, or “information” unless it first informs persons of the specific purpose for the collection and the length of term for which it will be collected, stored and used. An executed release and consent is required. Employers must also develop a written policy that gives a retention schedule and guidelines for destruction of biometric data.
Do you use a timeclock with a finger scan? Do you conduct interviews through electronic media? Do you have private agencies review the electronic interview and provide a commentary as to the suitableness of the employee for employment? Third party review of the interview along with comments will often discriminate against employees because of race, sex and other Title VII factors.
BIPA does not appear to apply to starting personal computers or phones by using a finger scan since the data is not collected but is stored only on that device.
There are at least five reported cases under BIPA which provide little guidance.
Illinois Passes the Artificial Intelligence Video Act
AIVA becomes effective January 1, 2020, applies to all recruitment efforts for all positions, does not permit artificial intelligence evaluations unless the applicant is explained how the technology works and the purpose of the technology. AIVA also requires prior written consent. Sharing of video interviews is prohibited. AIVA requires all copies of the video to be destroyed within 30 days of the applicant’s request, which probably is in conflict with EEOC’s retention policies.
AIVA does not answer questions such as “What is artificial intelligence analysis,” nor does it give guidance as to what is a sufficient explanation of how technology works. AIVA does not enumerate the remedies available to aggrieved employees.
Illinois Attorney General Act Amended
The Illinois Attorney General Act is amended effective January 1, 2020, which adds a new section 6.3 entitled “Worker Protection Unit.” Section 6.3 establishes a new unit in the Attorney General’s office dedicated to combatting businesses that underpay employees or force workers to work in unsafe conditions in order to gain an unfair economic advantage.
The new Worker Protection Unit shall have the power and the duty on behalf of persons within this state to interview, initiate and enforce all legal proceedings on matters related to payment of wages, safety of the workplace, fair employment practices, including the Prevailing Wage Act, Employee Classification Act, Minimum Wage Act, the Day and Temporary Labor Services Act and the Wage Payment and Collection Act.
If the Attorney General determines a violation of any of these Acts, the Attorney General can examine persons under oath, issue subpoenas or conduct hearings in aid of an investigation. The Attorney General will now have the right to request from the Illinois Department of Labor (IDOL) any materials in the possession of the IDOL.
At first blush, it would seem that the Attorney General would have been performing these functions, but it had no statutory authority to do so. Under the prior law the Attorney General would not prosecute in the state courts without a referral from the IDOL or other state agency.
As a practical matter, under the prior law an aggrieved person would file a complaint with the Illinois Department of Labor and, if the IDOL did nothing, that ended the case. Now the Attorney General’s office can take complaints directly and prosecute them in the courts.
Employers are Prudent to Address Notices Assessing Withdrawal Liability under ERISA
In Trustees of Suburban Teamsters Pension Fund vs. The E Company, one employer who was found to be part of a controlled group ignored notices from the Pension Fund which assessed withdrawal liability. All notices were ignored by both employer companies. The Pension Fund then mailed a past due notice, declared a default and declared an acceleration of when the payments are due. The Pension Fund sued for all of the withdrawal liability, interest, liquidated damages, attorneys’ fees and costs. The court found that because of ignoring the notices, the employers lost their right to arbitrate whether or not the Pension Fund was entitled all the monies it assessed. The court noted that the defendants had every opportunity to arbitrate (a necessary step in order to appeal a pension fund assessment), and further lost its right to argue that it was not part of the controlled group. If not part of the controlled group, a pension fund cannot assess liability against an employer. Controlled group members are jointly and severally liable for pension withdrawal liability.
Employers should read and address every notice from a pension fund in order to avoid the result of this case.
NLRB Reverses Its 2015 Opinion as to Collection of Dues Check-Off Monies
On December 16, 2019, the National Labor Relations Board (NLRB) overruled its 2015 ruling that required employers to continue deducting dues check-off after the union agreement expires. In Valley Hospital, the NLRB ruled that the obligation to check off and remit union dues ends at the expiration of the union agreement. The Valley Hospital decision returns to NLRB precedent in effect from 1962 to 2015.
NLRB Finds Confidentiality Rules are Generally Lawful
On December 16, 2019 in Apogee Retail the NLRB reversed a prior decision in Banner Estrella ruling that it is lawful to maintain confidentiality rules when an employer is investigating employee misconduct or violation of a harassment policy. The Board limited the decision to confidentiality rules that apply during the duration of any investigation so long as the confidentiality rule does not apply after the investigation is completed. However, the NLRB went on to say that if an employer can articulate a legitimate justification for requiring confidentiality even after the investigation is over and so long as those justifications outweigh the negative effect on employees to exercise their rights under Section 7 (Right to Self-Organize).
The Apogee case remanded the case to the Administrative Law Judge to determine if the employer can articulate legitimate justification for requiring confidentiality after the investigation is over.
NLRB Returns to Old Rule that Employees Cannot Use Company E-mail for Organizing or Other Purposes
In the case of Caesar’s decided December 16, 2019, the NLRB overruled a 2015 decision which permitted employees to use company email on their own time. Again, in Caesar’s the NLRB overruled a 2015 decision which permitted employees to use the company email to communicate to other employees for organizing and other union purposes. The NLRB stated there must be an accommodation between employees’ organizational rights and employer’s property rights, and there should be little destruction of the union right as well as the employer right. The Court held there is no Section 7 right to use employer televisions, bulletin boards, telephones, public address system and emails.
The NLRB cautioned that all restrictions on Section 7 activities in the workplace were unlawful. The NLRB went on to caution that employees must have an adequate avenue of communication to exercise their Section 7 rights: oral solicitation, face to face communication, literature distribution on employee free time are more than adequate avenues of communication. Moreover, in a modern workplace, employees have access to smart phones, personal email, social media which provide additional avenues of communication for Section 7 related purposes. The NLRB concluded that there is no requirement that the most convenient or the most efficient means of conducting communications are the hallmark of Section 7 rights. The employee’s burden is to show that they are deprived of any reasonable means of communication with each other or proof of discrimination.
The Apogee ruling is being applied retroactively to all pending cases.
Illinois Minimum Wage Laws
Illinois Minimum Wage effective January 1, 2020 is $9.25 and increases to $10.00 on July 1, 2020.
Illinois Employers with less than 50 employees can get a tax credit under SB 0001 for a portion of the wage increase.
The Illinois Cook County minimum wage on July 1, 2019 is $12.00 per hour, which increases to $13.00 an hour on July 1, 2020.
The Chicago minimum wage is currently $13.00 per hour and beginning on July 1, 2020 will increase based on the rate of inflation, not to exceed 2.5%.
New Chicago Ordinance Requires Employers Give Employees Advance Notice of Their Schedules
Effective July 1, 2020, Chicago employers employing 100 or more employees globally must provide employees 10 days’ advance notice of their work schedules. The ordinance applies to building services, health care, hotel, manufacturing, restaurant, retail and warehouses. Additionally, employers are covered if they employ 50 or more “covered employees.” A covered employee earns $50,000 or less annually on a salaried basis or $26.00 per hour or less and spends a majority of his time working within the city limits and performs the majority of his work in a covered industry. The law is called The Chicago Fair Workweek Ordinance.
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