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.
Inside This Issue
1. Illinois Governor Signs Amendment to Equal Pay Act Prohibiting Questions about Prior Salary History
2. Can Employers Terminate Their Health Plans and Give Employees Cash?
3. Illinois Adopts Living Donor Protection Act which Amends the Organ Donor Leave Act
4. U.S. Supreme Court Modifies Rules as to Deference To Agencies
5. Illinois Eavesdropping Act – Who Can You Record?
6. Recent Favorable National Labor Relations Board Rulings
Illinois Governor Signs Amendment to Equal Pay Act Prohibiting Questions about Prior Salary History
The Illinois Equal Pay Act, 820 ILCS 112/10, was amended on July 31, 2019, and becomes effective 60 days thereafter.
The phrase “substantially similar” now appears in all the sections which require sexes to be paid the same when they have “equal skill, effort and responsibility.”
Race is protected under the Equal Pay Act since it cannot be a basis of determining compensation.
The Act prohibits:
There is no violation if an applicant volunteers salary history, but the employer cannot rely on the disclosure in making an offer.
The Act permits an employee to bring a suit for any underpayment, together with interest, compensatory damages and if there is malice or reckless indifference, punitive damages, and an injunction is available. Special damages may not exceed $10,000.00 plus costs, plus reasonable attorney’s fees. The action must be brought within five years of the date of the violation.
Teach your interviewers about this new law and amend your employment applications.
Can Employers Terminate Their Health Plans and Give Employees Cash?
The answer is “probably.” But don’t start handing out cash yet. An employer could set up an individual employee Health Reimbursement Arrangement (HRA) wherein an employee could choose and purchase insurance of his/her choice. However, the Affordable Care Act (ACA) held this to be illegal. On June 13, 2019, the Department of Health and Human Services, the Department of Labor and the Internal Revenue Service issued a set of regulations that reversed that holding. The new regulations are complex. Proper plan documents must be in place which set up an employee “account” which covers all or part of the expense for the employee to purchase individual coverage of his choice.
Illinois Adopts Living Donor Protection Act which Amends the Organ Donor Leave Act
The Living Donor Protection Act, 5 ILCS 321/20, was approved on August 1, 2019 and becomes effective January 1, 2020. The Organ Donor Leave Act generally provides that if an employee wishes to donate blood, an organ or bone marrow, employee shall request advanced leave. An employee may use up to 30 days for organ donation or serve as bone marrow donor in any 12-month period. Employees are entitled to one hour to donate blood, one and a half hours to donate double red cells and up to two hours to donate blood platelets. The Act was amended by adding that an employer shall not retaliate against an employee for requesting or obtaining leave of absence under the Act. It is assumed that regulations will be published before January 1, 2020.
The Act also amends the Insurance Code to prohibit denial of coverage or increase of premiums for living organ donors. Insurance companies are barred from refusing to insure or continue to insure, to limit amount and extent of coverage in life and disability policies. Insurance companies generally are prohibited from raising their rates.
U.S. Supreme Court Modifies Rules as to Deference To Agencies
Federal Courts have generally reasoned that administrative agencies have superior knowledge of a subject and the courts should give deference to agency decisions (EEOC, NLRB, Veterans Affairs, Dept. of Labor; this list is illustrative not exhaustive).
The court did place limits on when deference is not warranted: the regulation is ambiguous; the agency’s interpretation must be reasonable; the interpretation must be official or authoritative rather than a mere statement by an agency employee which does not reflect an official view; and, finally, the agency interpretation must be fair, considered and consistent judgment.
Illinois Eavesdropping Act – Who Can You Record?
The 1994 Illinois Eavesdropping Act was amended in 2014. Under the 2014 amended Act a person commits eavesdropping by knowingly and intentionally using an eavesdropping device to overhear, transmit, or record any private conversation regardless of whether he/she is a party to the conversation. The exception is when it is done with the consent of all the parties to the conversation. It must be known, intentional and a private conversation which means there is an evaluation of a party’s reasonable expectation of privacy.
Reasonable expectation of privacy many times comes down to a question of fact. What if you leave a door open in an office and there are people immediately outside of the office that can hear the conversation? This is probably not a reasonable expectation of privacy. A party harmed by a violation of this Act can ask for civil penalties and under certain circumstances it can be a felony.
Federal law only requires one party to give consent prior to recording the conversation, as does the State of Iowa.
Recent Favorable National Labor Relations Board Rulings
In a Walmart case decided on July 25, 2019, the National Labor Relations Board (“Board”) reversed an Administrative Law Judge’s decision that a work stoppage called the “Ride for Respect” was not an intermittent strike which is unprotected by the National Labor Relations Act. The employer was thereby permitted to discipline and discharge employees who participated in the work stoppage. This is a favorable decision for employers.
In an Advice Memorandum issued June 17, 2019, the General Counsel of the Board concluded that annual wage increases as an established practice that predated union contract negotiations were lawful. In this case a union contract had expired and contract negotiations were ongoing trying to achieve a new collective bargaining agreement. The General Counsel concluded that the “status quo” was to be continued even during contract negotiations until the parties bargain for a new agreement or reach impasse.
The General Counsel also recommended that a prior case decided by Obama appointed board members should be overturned as it was inconsistent with the Advice Memorandum of June 17, 2019.
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