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Inside This Issue
1. Employer Bad Faith Bargaining Can Lead to Paying Union Attorney Fees
2. Chicago Employers Need to Comply with Amended Sexual Harassment Ordinance
3. “Quiet Quitting” Must be Addressed
4. CROWN Act Expands Ban on Race Related Hair Discrimination
5. NLRB Rules Employer Policies Cannot Limit Wearing Union Insignia and Apparel
Employer Bad Faith Bargaining Can Lead to Paying Union Attorney Fees
The 9th Circuit Federal Court of Appeals reviewed a long running collective bargaining dispute in which the NLRB found the company engaged in bad faith bargaining. The 9th Circuit agreed with the NLRB that the company engaged in “unusually aggravated misconduct” resulting in a novel remedy which included paying the union’s attorney’s fees during collective bargaining which can exceed $1,000,000.00.
Chicago Employers Need to Comply with Amended Sexual Harassment Ordinance
Starting last July 1st every business located in Chicago must have a written sexual harassment policy which sets forth the Ordinance definition of sexual harassment, which means any of the following: (i) unwelcome sexual advances or unwelcome conduct of a sexual nature; (ii) requests for sexual favors or conduct of a sexual nature when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or (2) submission to or rejection of such conduct by an individual is used as the basis for any employment decision affecting the individual; or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment: or (iii) sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual's employment position.
Covered employers must provide employees sexual harassment prevention training which includes at least 1 hour of training each year while supervisors must have at least 2 hours of prevention training each year.
Chicago employers must also provide written sexual harassment policy in the first week of employment in the employee’s primary language. There is also a poster required to be posted by employers which list the prohibitions. Records demonstrating compliance with the Ordinance must kept for at least 5 years or longer if there is a civil action or investigation.
“Quiet Quitting” Must be Addressed
There appears to be a “quiet quitting” trend which employers must address. Quiet quitting is generally defined as an employee that will not go over and above what is an employer’s minimum requirements. Employer policies should address this quiet quitting trend which most often can be defined as declining job performance or poor job performance or even insubordination. Employers must have a system of identifying quiet quitters by giving the employees the necessary write-ups and warning that they are not performing the job as required.
In today’s economy employers may be reluctant to fire a quiet quitter but performance reviews are recommended to identify who gets laid-off or fired first when circumstances permit.
CROWN Act Expands Ban on Race Related Hair Discrimination
An amendment to the Illinois Human Rights Act by the CROWN Act expands the definition of “Race” to include “traits associated with race including but not limited to, hair texture and protective hair styles such as braids, locks and twists.” The CROWN Act further does not list non-discriminatory conduct that “prohibits an Employer from enacting a dress code or grooming policy that may include restrictions on attire, clothing or facial hair to maintain workplace safety or food sanitation.”
The CROWN Act is effective January 1, 2023.
NLRB Rules Employer Policies Cannot Limit Wearing Union Insignia and Apparel
In August the NLRB issued a Decision in Tesla, Inc. in which the NLRB overruled its 2019 Decision in Wal-Mart Stores, Inc.
In a 3-2 Decision the NLRB found that Tesla could not maintain a policy requiring employees to wear a plan black t-shirt or one with the employer’s logo which in effect barred wearing a shirt with union insignia. The NLRB reaffirmed that when an employer interferes in any way with employees’ right under Section 7 (the right to engage in concerted activities or refrain from same), that interference is presumably unlawful and shifts the burden to the employer to demonstrate special circumstances necessary to maintain production or discipline. The Tesla decision affirmed NLRB decisions and any attempt to restrict wearing of union clothing or insignia is presumptively unlawful and “an employer has a heightened burden to justify attempts to limit this important right.”
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