Law Offices of Stanley E. Niew, P.C.
attorneys at law
LABOR & CONSTRUCTION LAW UPDATES
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.
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SEPTEMBER 2019
Inside This Issue
1. Illinois Governor Signs Workplace Transparency Act
2. Illinois Human Rights Act Amended
3. Illinois Contractor Prompt Payment Act Amended
4. NLRB reverses Two 2013 Decisions Restoring Owners Property Rights
5. NLRB Memo Gives Clarity for Workplace Social Media Policies
6. NLRB Rules Following Employer Vehicles is Not Without Restrictions
Illinois Governor Signs Workplace Transparency Act
The Governor signed into law the Illinois Workplace Transparency Act (“WTA”) which becomes effective for almost all employers on January 1, 2020. There are provisions for hotels and casinos which went into effect upon signing on August 9, 2019. The hotel and casino provisions will not be addressed in this article.
The WTA has made sweeping changes to employment law while also amending the Illinois Human Rights Act (“IHRA”) and Illinois Victims' Economic Security and Safety Act (“IVESSA”). The IHRA previously banned discrimination based on perceived protected characteristics such as harassment and forms of discrimination, but under the amendment the perceived characteristic can be protected even if the individual actually does not have that characteristic. IVESSA previously provided 4 to 12 weeks of unpaid leave after domestic or sexual violence but the amendment now includes gender violence as qualifying for leave.
While the WTA is effective on January 1, 2020, the WTA also mandates that beginning on July 1, 2020 and every year thereafter, employers must disclose to the Illinois Department of Human Rights adverse judgments or administrative rulings against the employer during the preceding year in any discrimination case under any federal or state law. The adverse judgments or administrative rulings must be broken down by classes such as sexual harassment, discrimination or harassment on the basis of sex, race, color, national origin, religion, age, disability, military status, sexual orientation or gender identity. These disclosures will not be subject to a FOIA request.
The WTA applies to all employment, separation and settlement agreements entered into after January 1, 2020. The WTA makes non-disclosure and non-disparagement clauses unlawful. The WTA makes changes to confidentiality language that almost always were a part of any separation or settlement agreement. While confidentiality is not barred, employers cannot limit making truthful statements regarding unlawful employment practices. The employer must demonstrate that confidentiality benefits both parties, there is a documented preference of present prospective of former employees, any agreement must inform the employee of his/her right to an attorney, the employee does not waive any claims that have not accrued and the employee must receive at least 21 days to consider signing such an agreement and at least 7 calendar days after signing the agreement to revoke it.
The WTA permits confidentiality with respect to some employees who receive or investigate complaints, have access to complaints as well as third party consultants.
The WTA also effects arbitration agreements. Any arbitration agreement, which is a unilateral condition of employment, requires employees to waive, arbitrate any future or existing claim is void as against public policy “to the extent it denies an employee or prospective employee a substantive or procedural right of remedy related to alleged unlawful employment practices, and severable from an otherwise valid and enforceable contract under the Act.”
The WTA also requires employers to conduct annual sexual harassment training for all employees which must include minimum requirements as stated in the WTA. There should be separate training for supervisors followed by training for employees.
Collective bargaining agreements are excluded under the WTA.
What should employers do?
Read the entirety of the WTA since it is complex and where there is not a complete understanding contact competent legal counsel.
Check all policies, handbooks and the like for compliance with the WTA. Review any sexual harassment or other harassment policies including training provisions.
This process should be started now so every employer will be ready to implement the changes of the Act on January 1, 2020.
Illinois Human Rights Act Amended
On August 20, 2019 the Illinois Governor signed an amendment to the Illinois Human Rights Act defining an employer as any person employing one or more employees within Illinois during 20 or more calendar weeks. The prior law was 15 or more employees. The law is effective July 1, 2020.
Illinois Contractor Prompt Payment Act Amended
The Illinois Contractor Prompt Payment Act was amended adding Section 20. Section 20 states:
"Sec. 20. Retainage. No construction contract may permit the withholding of retainage from any payment in excess of the amounts permitted in this Section. A construction contract may provide for the withholding of retainage of up to 10% of any payment made prior to the completion of 50% of the contract. When a contract is 50% complete, retainage withheld shall be reduced so that no more than 5% is held. After the contract is 50% complete, no more than 5% of the amount of any subsequent payments made under the contract may be held as retainage."
The amendment became effective on August 20, 2019.
Unanswered is whether or not the 50% completion retainage is reduced to 5% of the contract value or 5% of “any subsequent payments which are due.”
Owners, developers and general contractors must take this Act in account in negotiating loans to ensure enough cash flow when asking for loan payouts.
NLRB reverses Two 2013 Decisions Restoring Owners Property Rights
The two 2013 decisions were New York New York and Simon DeBartolo and held that off duty contractor employees who worked regularly, but not exclusively on the owner’s property, permitted the off duty contractor’s employees to engage in protected Section 7[1] conduct on the property of either a shopping center or a casino, unless the owner could show that the greater restrictions were justified by a heightened risk of disruption or interference with the use of the property. In the shopping center case (DeBartolo), the employees of an off duty contractor that had no connection to the owner were permitted to handbill one of the tenants in the shopping center.
In Bexar County Performing Arts Center Foundation decided on August 23, 2019, the NLRB overruled both New York New York and Simon DeBartolo. In Bexar the Board announced a new standard which ensures a proper weighing of both rights accommodating Section 7 and property risk. It acknowledges the Section 7 access rights of off-duty contractor employees with a sufficient connection to the property at which they regularly and exclusively work. It also ensures that, where the contractor employees have alternative nontrespassory means to communicate their message, the Board will not require an unwarranted infringement of a property owner’s property rights.
When off-duty contractor employees seek to access an owner’s property to communicate to the general public, the property owner may exclude the contractor employees if the owner can demonstrate that the employees can effectively communicate their message through nontrespassory means, which may include newspapers, radio, television, billboards, handbills and other media through which is transmitted “the ordinary flow of information that characterizes our society.”
Now a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner shows that they have one or more reasonable nontrespassory alternative means to communicate their message.
Footnote [1]: Section 7 of the National Labor Relations Act (the Act) guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."
NLRB Memo Gives Clarity for Workplace Social Media Policies
On August 15, 2019 the NLRB’s General Counsel made available a September 5, 2018 Advice Memo.
CVS Pharmacy (“CVS”) had two policies that unlawfully interfered with employees’ rights under Section 7 of the National Labor Relations Act which in part gives workers the right to engage in concerted activities and to discuss wages and working conditions.
The first unlawful policy required employees to identify themselves by their real names when employees discussed the company and their work on social media. The Advice Memo concluded that requiring employees to self-identify in order to participate “in collective action would impose a significant burden on Section 7 rights.”
CVS also restricted employees from disclosing “employee information” on social media. The Advice Memo concluded there is a legitimate business interest in keeping customers and employees personal and medical information confidential but CVS has no legitimate interest “in preventing employees from sharing contact information or discussing wages, working conditions or employment disputes.”
The remainder of CVS’s policies were found lawful.
NLRB Rules Following Employer Vehicles is Not Without Restrictions
In a decision issued on August 9, 2019 in Local 702 IBEW v. NLRB where an employer fired a union member where the termination was based on the union member’s act of following a company truck that was driven by a non-union employee. The union argued that the termination was based on protected conduct since the union member was merely following the truck to set-up a picket at a jobsite.
The testimony revealed that both were traveling on a major throughway at a high rate of speed when the union member weaved in front of the truck and then purposely impeded the truck driver and only relented when the truck exited the highway to take an alternative road to the jobsite. The truck driver testified that he felt unsafe because of the union member’s actions.
The Board ruled that the union member’s termination was proper since the union member’s activities were outside the protection of the NLRA.
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