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FEBRUARY 2023

Inside This Issue

1. Get Prepared to Pay Illinois Mandated Paid Leave in 2024

2. Illinois Supreme Court adopts policy for Remote Court Proceedings

3. United States Department of Labor ("USDOL") issues Field Assistance Bulletin regarding Telework

4. Reports by Union that Tesla Fires Employees After Workers Began a Union Campaign

5. Occupational Safety and Health Administration (“OSHA”) Increases Fines for 2023

6. National Labor Relations Board (“NLRB”) Continues to Reverse Past Precedent

Get Prepared to Pay Illinois Mandated Paid Leave in 2024

The Illinois General Assembly passed the Paid Leave for All Workers Act (“PLFAW”) which becomes effective January 1, 2024. The Governor is expected to sign the law which will require most Illinois employers to provide eligible employees up to forty (40) hours paid leave per year.

Under PLFAW leave will accrue at the rate of one (1) hour of paid leave for every forty (40) hours worked with a cap of a total of forty (40) hours. Covered employees must accrue paid leave upon hiring but employers can prevent new employee from taking of paid leave until after 90 days of employment.

It is wise to adopt a written policy to require seven (7) calendars day notice of foreseeable leave and if not foreseeable, employees must provide notice as soon as practical. Employers cannot require a reason for leave or request the employee provide documentation. Employees determine how much leave to take at any one time, but employers can limit the leave to no less than two (2) hours per day.

Employers cannot require an employee to find a replacement to cover the employees leave. Healthcare must be continued for the employee or any family member for the duration of the leave consistent with the plan.

Employers must post a notice prepared by the Illinois Department of Labor and then place the leave policy in employer handbooks.

Employers may require use of all paid leave if not used prior to end of a benefit period however he paid leave must be front loaded to the first day of employment or the first day of a designated twelve (12) month period.

Employers who have CBAs can have the paid leave waived in the CBA by clear and unambiguous language.

The PLFAW excludes construction employers covered under a CBA or employers who deliver packages or freight nationally.

Illinois Supreme Court adopts policy for Remote Court Proceedings

Since November of 2022 remote proceedings are mandated in all Illinois civil cases subject to local rules but now litigants in civil proceedings can attend court remotely without approval of the court. There are different rules for criminal proceedings which will not be dealt with here.

Remote proceedings will eliminate travel to and from courthouse.

USDOL issues Field Assistance Bulletin regarding Telework

On February 9, 2023, the USDOL issued a Field Assistant Bulletin (“FAB”) regarding telework Under the Fair Labor Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”). The FAB provides guidance as to what constitutes working time and hours worked. For example, time spent waiting for work to arrive or on a break constitutes hours worked.

The work day generally begins when an employee commences their first “principal activity” and ceases when the principal activity ends. The workday may be longer than the scheduled shift or scheduled hours.

Short breaks of twenty (20) minutes or less are generally counted as hours worked. This is regardless of the employee working from home, employer’s worksite, or location not controlled by the employer.

Meal breaks in which an employee is completely relieved of work duties is not work time. Typically, thirty (30) minutes or longer. The same holds true for breaks longer than twenty (20) minutes as long as the employee is completely relieved from duty so as not to be counted as hours worked.

Employers should tell employees in advance when they may leave the job and till employees not to commence work until a specified hour has arrived.

All of the above rules apply to telework, work away from the employer’s place of business or other designated site.

Reports by Union that Tesla Fires Employees After Workers Began a Union Campaign

Tesla autopilot workers reportedly announced a campaign to organize workers after Tesla allegedly terminated workers who started an organizing effort.

Workers United filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”) as a result of the alleged firing. The workers request that the NLRB file a complaint in the United States District Court seeking to enjoin Tesla’s firing. We will keep you posted as to the NLRB’s actions against Tesla.

Occupational Safety and Health Administration (“OSHA”) Increases Fines for 2023

Effective January 17, 2023, OSHA’s maximum penalties for serious and other-than-serious violations increase from $14,502.00 per violation to $15,625.00 per violation. For willful and repeat violations there is an increase from $145,027.00 per violation to $156,259.00 per violation.

National Labor Relations Board (“NLRB”) Continues to Reverse Past Precedent

In McLaren Macomb and Local 40 RN Staff Council, Office and Professional Employees, International Union (OPEIU), AFL–CIO decided on February 21, 2023, the NLRB reversed two prior rulings in Baylor University Medical Center and IGT d/b/a International Game Technology which broke long-settled law and replaced it with a test that fails to recognize that unlawful provisions in a severance agreement given to employees have a reasonable tendency to interfere with, restrain, or coerce employee rights under Section 7 of the Act. In Baylor and IGT the terms of the nondisparagement and confidentiality provisions at issue here, were found to be unlawful, and thus the severance agreement given to employees was unlawful.

The main issue presented is whether the Employer violated Section 8(a)(1) of the National Labor Relations Act (Act) by offering a severance agreement to 11 bargaining unit employees it permanently furloughed.

Absent from either Baylor or IGT was any analysis of the specific language in the challenged provisions of the severance agreements. Baylor and the IGT majority ignored well-established precedent concerning waiver of employee rights.

How many more cases will the current NLRB overrule? Only time will tell.

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