Law Offices of Stanley E. Niew, P.C.
attorneys at law
LABOR & CONSTRUCTION LAW UPDATES
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MAY 2021
Inside This Issue
1. Employers Should Review Hiring and Pay Practices Because of New Illinois Law and Regulations
2. OSHA’S Covid-19 Guidance
3. New “GIG” Rule
4. Is Your Company Going to Permit Work from Home After the Pandemic?
5. Adverse Employment Action Expanded
6. Prevailing Wage Claims on the Rise
Employers Should Review Hiring and Pay Practices Because of New Illinois Law and Regulations
Governor Pritzker signed the Employee Background Fairness Act in March 2021. The provisions include that Illinois employers cannot disqualify an applicant or employee because of a prior conviction record unless it is “substantially related” to the job or is a safety risk.
If an employer learns of a prior conviction it believes is disqualifying, the employer must inform the applicant of the preliminary decision in writing and the applicant must be given five days to respond before a final decision. The employer must consider in its response such factors as the length of time since the conviction, the age of the applicant or employee at the time of the conviction, the number of convictions on the record, the circumstances surrounding the conviction and evidence of rehabilitation.
After weighing those factors, the employer can take negative action or the applicant can file a charge with the Illinois Department of Human Rights.
The law also has an additional pay equity for women and minority workers which requires employers with more than 100 employees to obtain an “equal pay registration certificate” by 2024 for certification employers must demonstrate that average compensation for females and minority employees is not below average compensation, using such factors as experience, seniority, duties and other mitigating factors. The application then must be filed with the Illinois Secretary of State which is to remain private.
Failure to obtain certification can subject the employer to a fine up to 1% of gross profits.
The only positive thing about the law is that there is ample time to prepare for and complete certification.
OSHA’S Covid-19 Guidance
On February 10, 2021, OSHA issued their Covid-19 Guidance with a caveat that President Biden’s Executive Order directs OSHA to issue new emergency Covid-19 Standards by March 15, 2021. We have been unable to locate such a revised standard.
The OSHA Guidance requires all employers under the OSHA General Duty Clause [1] adopt a formal Covid Prevention Plan which includes the following:
- Conduct hazard assessment relating to Covid exposure
- Identify control measures such as distancing, masks, barriers to limit the spread of Covid
- Encourage sick workers to stay at home and not come to work
- Communicate and train employees to OSHA policies and procedures in an employee’s native tongue
- Implement a policy which protects employees from retaliation for raising concerns.
We will keep you posted if OSHA makes any changes.
We cannot predict how the latest CDC guidance will affect OSHA’s reasoning, if at all. It is probably best to continue to follow your Covid-19 safety protocols whether employees are vaccinated or not. If you are going to deviate from your current Covid-19 protocols, it is best to document why the change was necessary and the rationale.
[1] The General Duty Clause requires employers to provide a safe workplace.
New “GIG” Rule
The U.S. Department of Labor rescinded a Trump era rule which made it easier for businesses to classify workers as independent contractors rather than employees. “Gig” workers are independent contractors who perform on demand services, such as ride share or food delivery.
The USDOL signaled that gig workers should be classified as employees to gain work benefits. A poll found that gig workers are one-third more likely to be black or Latino. Some construction industry employers in sub-trades employ gig workers to perform construction services.
Is Your Company Going to Permit Work from Home After the Pandemic?
If your company elects to adopt a remote workforce combined with on-site workers, the traditional compensation considerations generally go out the window.
We have all heard that the tech companies have announced they will adopt a work from home model. The question becomes for the tech companies, as well as your company, how to develop a compensation model to avoid a class system, and avoid the many discrimination laws, both federal and state. Pay for remote workers can more easily be based on job performed, skills and availability of labor, with little weight being placed on location. Remote workers generally have no commute time, no auto or commuting expenses and provide the remote worker with a lifestyle which allows for child care and other personal commitments. For some remote workers returning to office routine can cause the worker to seek other employment.
Be careful not to discriminate against either in-house workers and remote workers, which can easily happen. For example, it becomes easy to allow certain classes of employees to fall in one category or the other in particular because of age, sex, race, or national origin, etc. Employers should develop a system of checks and balances to avoid violating the discrimination laws. Remember too that persons working from home who were not exempt from overtime continue to be not exempt, so a system of employee reporting time should be considered and developed.
Adverse Employment Action Expanded
We normally think of materially adverse employment actions under the Family Medical Leave Act (FMLA) and the American with Disabilities Act (ADA) to include compensation, fringe benefits and other financial terms which may be diminished. But, a case decided in March 2021, a U.S. District judge for the Northern District of Illinois expanded the meaning of “materially adverse employment actions.” In Majors v. Tootsie Roll Industries the plaintiff filed a lawsuit against Tootsie Roll alleging violations of the FMLA and ADA. Plaintiff’s doctor submitted paperwork for short term disability claims which revealed he was being treated for bipolar disorder. Soon after the short term disability claim surfaced, the company stopped communicating with the plaintiff.
About two months later, while still on leave, plaintiff emailed the company treasurer and asked about his annual bonus, which plaintiff failed to receive. The head of HR scheduled a meeting with the plaintiff and handed him long term disability paperwork to complete, even though plaintiff continued bipolar disorder treatment.
Another month goes by and the employer informed plaintiff that he was barred from the property and placed him on unpaid leave of absence, even though plaintiff had not quit nor had he been terminated. Plaintiff filed a suit and the employer filed motions to dismiss, which the court promptly denied. The District Court said that the plaintiff’s only path was separation from the company and to accept long term disability benefits which the court reasoned was a plausibly alleged materially adverse employment action that would dissuade plaintiff from engaging in protected activity. Stated differently the plaintiff made out a retaliation claim.
Now we wait to see what the evidence will show.
Prevailing Wage Claims on the Rise
Most local, state and federal jobs (depending on dollar amount) are subject to the Illinois Prevailing Wage laws as well as the Federal Davis-Bacon Act.
Unions and union supported organizations often target union employers who are not friendly to labor as well as open shop contractors.
Contractors who cheat should get what they deserve which is assessments, fines and interest. What happens to a contractor who is not a cheat but is faced with an audit which results in a finding that there is a discrepancy based on clerical error or disputed worker classifications? Many contractors who receive assessments as a result of audits simply pay them because the assessment is minimal. Such payments, without a protest, can bar the contractor from bidding certain contracts since some units of government can cause the general contractor to reject a bid from any contractor who has any pending prevailing wage complaint, as well as any black marks against the contractor’s record.
Employers faced with prevailing wage audits should carefully review the audit to make certain that they contest anything remotely incorrect in the audit.
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