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DECEMBER 2022
Inside This Issue
1. Amendment to Article 1 – The Bill of Rights of the Illinois Constitution
2. NLRB Rules Remedies Must Compensate Employees for All Direct or Foreseeable Financial Harms
3. Time Spent Before and After a Shift Maybe Compensable Under Fair Labor Standards Act (“FLSA”)
4. Illinois One Day Rest in Seven Act Amended Effective January 1, 2023
Amendment to Article 1 – The Bill of Rights of the Illinois Constitution
The key provision which needs to be examined is Section 25. Workers’ Rights, as follows:
"(a) Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment."
The question is whether Section 25(a) applies to all employers in the State of Illinois or is it limited to workers employed by the State or other municipal government. It would strongly seem that this provision cannot usurp the National Labor Relations Act and thus it applies only to State and other municipal workers. Only further litigation will provide a clear answer.
NLRB Rules Remedies Must Compensate Employees for All Direct or Foreseeable Financial Harms
In a decision issued on December 13, 2022, in Thryv, Inc., the NLRB clarified its make-whole remedy to expressly ensure that workers who are victims of labor law violations are compensated for all “direct or foreseeable pecuniary harm” suffered as a result of those unfair labor practices. This decision follows the NLRB’s Notice and Invitation to File Briefs asking parties to weigh in on whether the NLRB should modify its make-whole remedy.
The decision explains that, in addition to the loss of earnings and benefits, victims of unfair labor practices may incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. The NLRB determined that compensation for those losses should be part of the standard, make-whole remedy for labor law violations.
The NLRB explained that the General Counsel will be required to present evidence in the compliance proceeding proving the amount of the financial harm, that it was direct or foreseeable, and that it was due to the unfair labor practice. The respondent employer or union would then have the opportunity to rebut that evidence.
“Employees are not made whole until they are fully compensated for financial harms that they suffered as a result of unlawful conduct,” said NLRB Chairman McFerran. “The NLRB clearly has the authority to comprehensively address the effects of unfair labor practices. By standardizing the NLRB’s make-whole relief to fully include the direct or foreseeable financial harms suffered by affected employees we will better serve the important goals of the National Labor Relations Act.”
This clarification to the NLRB’s remedy will apply in every case in which the NLRB’s standard remedy would include make-whole relief for employees. The NLRB will apply this remedy retroactively to all cases currently pending.
Time Spent Before and After a Shift Maybe Compensable Under Fair Labor Standards Act (“FLSA”)
Some employees have a habit of performing work before and after their shift begins which may be compensable under the FLSA. For example, it is usual for the employees to answer customer phone calls before and after their shift as well as logging into computers before their shift and logging out of computers after their shift ends.
If any activity is an intrical and indispensable employee duty it is probably compensable under the FLSA.
The takeaway is that employers should examine all employee pre-shift and post-shift activities under the FLSA.
Illinois One Day Rest in Seven Act Amended Effective January 1, 2023
The Illinois One Day Rest in Seven Act (“ODRSA”) was amended effective January 1, 2023, to change mandatory mealtime for 20 minutes no later than 5 hours after the start pf the work period. The law now requires at least 24 consecutive hours of rest in every consecutive 7-day period. The calculation is no longer based on Sunday through Saturday work week but now it is on any consecutive days worked.
If a covered employee works 6 consecutive days over 2 calendar weeks, the employee is now entitled to 24 consecutive hours of rest on the seven consecutive day.
Beginning in 2023 employees working more than 7.5-hour shifts will receive in addition to their 20-minute meal break an additional 20-minute meal break for every 4.5 continuous hours worked. This change will entitle an employee 2 unpaid meal periods for work performed in a continuous 12-hour shift.
ODRSA applies to any employer with one or more employees in Illinois but excluding part-time workers and meal or rest periods established in union agreements.
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