NEW EMPLOYMENT LAW OBLIGATIONS FOR ILLINOIS EMPLOYERS IN 2019

By Ross I. Molho Clingen Callow & McLean LLC -
Taking Effect in 2018
Illinois Human Rights Act
The Illinois' Human Rights Act was amended effective August 24, 2018 and it now requires all Illinois employers to advise employees of their right to be free from harassment, discrimination, and retaliation in the workplace.
Employers must post a notice titled "You Have the Right to Be Free From Job Discrimination and Sexual Harassment" and to include the same content from the notice in their employee handbooks. The content informs employees of:
An employee's right to request reasonable accommodations based on pregnancy and/or disability.
It is unlawful for employers to treat people differently because they reported discrimination, participated in a discrimination investigation, or helped someone else exercise their right to report discrimination.
Details on how and where to report discrimination in the workplace.

Nursing Mothers in the Workplace Amended
Before the amendment, the Nursing Mothers in the Workplace Act required employers of more than five employees to provide nursing mothers with unpaid breaks to pump milk that must, if possible, run concurrently with other provided break times. With the amendment, employers are now required to provide reasonable breaks any time an employee has the need to pump milk for one year after a child's birth. The breaks may (not must) coincide with other provided breaks, but an employer cannot require an employee to schedule pumping breaks around scheduled breaks or deduct pay from an employee's wages for the time used to express milk.
Before the amendment, an employer could claim an exemption from the requirement if the break would "unduly disrupt the employer's operations". Now, to be exempt from the requirement, employers must prove "undue hardship". Effective August 21, 2018.

Taking Effect in 2019

One Day Rest in Seven Act (Meal Breaks)
Illinois' One Day Rest in Seven Act was amended to allow an exemption for certain on-call employees. Under the law employers must provide employees with a minimum 20 minute meal break if the employee(s) worked 7 hours or more during one shift.
To qualify as an on-call employee under the amendment, the employee(s) must be:
employed by a private company,
licensed under the Emergency Medical Services (EMS) Systems Act,
required to be on call during an entire 8-hour work period,
and is/are not local government employees.
Employers must allow these employees to eat a meal while on call. Effective January 1, 2019.

Illinois Service Member Employment and Reemployment Rights Act
Enacted Illinois enacted the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) to consolidate the state's various protections for military service members.
Modeled after the Federal Uniformed Service Member Employment and Reemployment Act (USERRA), USERRA's benefits and protections are incorporated into ISERRA. Illinois takes it a step further, however, by expanding definitions and providing for other benefits. For example, the definition of "military service" was expanded to include:
Service in a federally recognized auxiliary of the United States Armed Forces when performing official duties in support of military or civilian authorities as the result of an emergency.
Service covered by the Illinois State Guard Act.
A period during which service members are absent from employment for medical or dental treatment related to a condition, illness, or injury sustained or aggravated during a period of active service.
Illinois employers are now required to credit an employee on military leave with an average performance rating. To calculate the average, an employer must use the performance ratings or evaluations that the employee received over the three years preceding the employee's active military service. The calculated average rating cannot be less that the rating that the employee received for the last rating period before his or her military leave.
In addition, if an employee elects to continue employer-provided group health insurance while on military leave, an employer must make employer contributions to the employee's premiums. And, for employees participating in annual military training, an employer must provide full salary continuation for the employee for up to 30 non-consecutive days per calendar year.
Illinois employers must post the notice of rights under ISERRA in a location where other employee notices are posted by January 1, 2019.

Illinois Wage Payment and Collection Act is Updated
An update to the Illinois Wage Payment and Collection Act requires employers to reimburse employees for "all necessary expenses that are incurred by the employee within the employee's scope of employment and that are directly related to services performed for the employer." An in-depth review of this amendment may be found in our Learning Library post dated October 24, 2018.
Final Takeaway
There have been few, if any, changes to Illinois labor and employment law over the past three and one half years of Governor Rauner's administration. Meanwhile, the Illinois legislature has been active this past six months and it is presumed it will be even more active with a super majority of Democrats. Governor Pritzker, a Democrat, take office in January 2019. Now is a good time for Illinois employers to get their "house in order" before the new year brings even more changes.

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FOUR THINGS EMPLOYERS DO TO MAKE THE HOLIDAYS (OR ANY TIME OF YEAR) HAPPIER FOR PLAINTIFFS’ ATTORNEYS (Like Goldman & Ehrlich)

By Kathryn S. Wood Dickinson Wright -
Employers want a happy workforce; that’s a given. But there are certain things that employers do to further that goal that might as well be a present tied with a bow for a plaintiff’s attorney after an employment relationship sours. Below are some tips to help avoid making a potential plaintiff’s attorney’s day merrier and brighter.
Performance Evaluation Puffery: Many are guilty of being overly generous in an employee’s performance evaluation. Why? Because it is easier to give a good (or at least a decent) performance evaluation than it can be to confront performance issues and deal with the ensuing unhappiness of the underperforming employee. Often the thought is that by giving a positive performance evaluation, the performance problems will disappear, as if positive feedback will translate into positive performance. This wishful thinking is almost never the case in reality, and a track record of positive performance evaluations for an employee who is ultimately terminated for performance is bound to put a smile on a plaintiff’s attorney’s face.
The problem of an inaccurate or overly generous performance evaluation is often exacerbated when there is a transition in management. When an employee who is positively (but not accurately) evaluated by a manager for years is suddenly reporting to a new manager who does not sugarcoat the performance evaluation, and when that employee is later terminated for performance, the song that the plaintiff’s attorney will sing to the judge or jury is that because the evaluations were positive under previous management, the sudden change in heart about the employee’s performance must be because of the new manager’s bias against the employee based upon his or her status in a protected class. Delivering an appropriate message about the employee’s performance during the entire evaluation period is a strong tool should litigation ensue and may even dissuade a prospective attorney from taking the case.
Protective Instincts: Employers who make “protective” decisions to “help” an employee will also make the day of a plaintiff’s attorney. For example, sometimes a manager may opt to send a male employee out-of-state for work on an important project instead of sending a female employee with small children at home, reasoning that she would not want to travel because of her responsibilities at home. Such a decision may be made with all of the best intentions and upon an assumption that relieving an employee with family responsibilities from travel will make that employee happy, but a plaintiff’s attorney will easily turn those intentions into an intent to discriminate. When decisions are made about staffing, travel, or overtime assignments, the employer is not “helping” anyone but the plaintiff’s attorney if the employee is eliminated from the decision making because he or she is assumed to need the “help” of the employer in navigating his or her work and personal life.
No Good Deed Goes Unpunished: Bending the rules for one employee to make him or her happier at work is also fodder for a plaintiff’s attorney. Consider the situation where a loyal, hardworking employee has a problem getting to work on time, enough for other employees to notice. Yet, because of the productivity and skill of the employee, the employer lets the attendance policy slide and puts up with the tardiness issue. Plaintiffs’ attorneys love it when an employer extends grace to an employee to make him or her happy because when the attorney’s client, who wasn’t as valuable to the organization, is terminated for violations of the unenforced policy, an argument about pretextual decision-making is strengthened: if it was okay for one employee to show up late for work regularly, the plaintiff’s tardiness must not have been the reason for the termination. The lesson: when an employer extends a courtesy and overlooks company policies for one employee, that decision may ultimately be a bigger courtesy to the plaintiff’s attorney.
A Kinder and Gentler Termination: Unless contractual language to the contrary, an employer does not need to give a specific reason for a termination, although there are certainly times when it makes sense to do so. What makes little sense is to give a reason that is not the true reason just to make the termination meeting “easier” on the affected employee. For example, if the employee is terminated for performance, it is unwise to tell the employee that his position is being eliminated for the purpose of sparing him or her humiliation or self-doubt. The act of “kindness” to the employee may make the person communicating the termination feel better for a period of time, but it will make the plaintiff’s attorney feel really good for a long time. The false reason articulated will be postured as pretext, not as an attempt to be compassionate.
 

EMPLOYERS TREAD CAREFULLY! THE INTERPLAY BETWEEN FEDERAL AND STATE LAWS REGARDING MEDICAL MARIJUANA USAGE

By Darryl McCallum Shawe Rosenthal LLP -
The U.S. Court of Appeals for the Ninth Circuit has a reputation as an employee-friendly forum. Yet that Court recently rendered a decision that employers should applaud. In Carlson v. Charter Communications, LLC, the Ninth Circuit refused to revive a former employee’s lawsuit against his employer in which he alleged that he was wrongfully terminated due to his legal use of medical marijuana. Interestingly, the panel of the Court that issued the decision consisted of two judges appointed by Presidents Clinton and Obama and one judge appointed by President George W. Bush. The case involved a Montana statute known as the Montana Marijuana Act, which allows patients with state-issued medical marijuana program cards to have a certain amount of marijuana in their possession.
Lance Carlson, the employee in this case, was fired for his legal marijuana use outside of work, in violation of the company’s employment policies. He sued the employer for wrongful termination and discrimination. The district court dismissed Carlson’s lawsuit and the Ninth Circuit affirmed the dismissal based on the fact that marijuana is still illegal under federal law; thus, it is not unlawful for an employer to have a policy prohibiting its use and to terminate an employee for violating that policy. The Court reasoned that since the Montana Marijuana Act contains no provision prohibiting employers from forbidding their workers to use marijuana nor does it allow employees to bring wrongful termination suits, then the statute does not prohibit the actions taken by the employer here.
An important caveat should be noted, however. Charter Communications, the employer in this case, was a federal contractor that was required to comply with the requirements of the Drug Free Workplace Act (“DFWA”). Interestingly, the Court did not hold that the DFWA preempts state law allowing medical marijuana use. It simply held that the state law itself “does not preclude a federal contractor from complying with all of the requirements” of the DFWA, such as by prohibiting the possession or use of marijuana in the workplace. Thus, the Court found no conflict between the two laws.
The Court’s decision here offers an interesting variation on the decision of the U.S. District Court for the District of Connecticut in Noffsinger v SSC Niantic Operating Company LLC, where that court rejected a federal contractor’s argument that, despite Connecticut’s law allowing medical marijuana use, the DFWA prohibited it from hiring an applicant who tested positive on a pre-employment drug test. That court similarly found no pre-emption of state law, noting that the DFWA does not require drug testing or prohibit the employment of individuals using illegal drugs outside the workplace. In addition, the Connecticut statute, unlike the one in Montana, does in fact provide a private right of action to a person who suffers an adverse employment action based on medical marijuana use.
The bottom line here is that there are now at least two federal court decisions holding that the DFWA does not preempt state laws regulating the medical or recreational use of marijuana. Thus, all employers, including federal contractors, need to be aware of state laws governing the use of marijuana for recreational or medical purposes. For instance, the state of Maine has a statute specifically prohibiting employers from refusing to employ or otherwise taking adverse action against a person who uses marijuana outside of work, except where the employer is required to comply with federally mandated testing for marijuana for certain positions (e.g., positions regulated by the U.S. Department of Transportation). Thus, depending on the language of the particular state statute at issue, an employer may face liability for taking an adverse action against an employee or applicant who tests positive for marijuana.

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Employees and employers often ask what the rules are for deduction or withdrawal from an employee's #wages when an employee's cash drawer or till comes up short. This question is related to the overall question of when it is appropriate for an employer to withdraw or deduct amounts from #employee paychecks. Here is my latest blog post on when #Nevada law authorizes an #employer to deduct amounts from an employee's wages or #paycheck. https://nevadalaborlawblog.com/2018/12/05/can-a-nevada-employer-deduct-a-short-cash-drawer-amount-from-an-employees-paycheck/

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If you need the services of immigration lawyers in Manchester to help resolve an immigration, nationality or asylum issue, please contact us at our local office.

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Overtime is one of the trickiest areas of law for employers to navigate, and quite often, employees are underpaid their overtime or simply not paid #overtime at all. In #Nevada, we have specific state rules that provide greater overtime protections for employees than are available under federal #law. Often even experienced #humanresources professionals and accountants can make mistakes on Nevada overtime pay. Here is blog post I just created on overtime pay in Nevada. https://nevadalaborlawblog.com/2018/12/04/when-is-my-employer-required-to-pay-me-overtime-in-nevada/

NAVIGATING THE MURKY WATERS OF ACCOMMODATIONS OF PREGNANCY-RELATED LIMITATIONS

By Jessica Coco Huffman Phelps Dunbar LLP -
There has been increasing media coverage regarding the extent of an employer’s obligation to accommodate pregnancy-related limitations that fall outside the scope of the Americans with Disabilities Act (ADA). While the Pregnancy Discrimination Act (PDA) does not require employers to provide accommodations to employees due to pregnancy or pregnancy-related limitations, it creates a potential trap for the unwary in which employers may be liable for pregnancy discrimination if they fail to provide certain accommodations in connection with pregnancy or pregnancy-related limitations.
With the passage of the ADA Amendments Act of 2008 (ADAAA), which became effective on January 1, 2009, Congress expanded the definition of “disability” under the ADA, making it easier for individuals to establish that they have a disability that falls within the meaning of the statute. As a result, while pregnancy itself is not a disability within the meaning of the ADA, some pregnancy-related impairments that were not previously considered disabilities under the ADA may now fall within the ADA’s coverage, entitling employees to a reasonable accommodation under that statute—absent undue hardship. For example, although temporary, pregnancy-related impairments such as preeclampsia, gestational diabetes, pregnancy-related sciatica, and pregnancy-related carpal tunnel syndrome, among others, might be considered disabilities within the meaning of the ADA.
What about those pregnancy-related limitations that do not fall with the ADA’s expanded definition of “disability”? The answer to this question is far from clear. The PDA provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work,” 42 U.S.C. § 2000e(k). This has been interpreted to mean that an employee may be able to prove unlawful pregnancy discrimination under the PDA if the employer accommodates some workers unable to perform certain job functions but refuses to accommodate pregnant workers unable to perform those same job functions. Thus, employer policies that are not intended to discriminate on the basis of pregnancy may potentially violate the PDA if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.
employee can call into doubt the employer’s justification by, for instance, showing that the employer accommodates a larger percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. For instance, an employer who accommodates most non-pregnant employees with lifting restrictions by assigning them light duty work, but informs pregnant employees with similar lifting restrictions that they cannot work while under such restrictions may be found in violation of the PDA. As an additional example, an employer who disciplines an employee due to her lactating schedule, but allows non-pregnant employees to change their schedules for other temporary medical conditions, may be found in violation of the PDA.
It is important to keep in mind that, if an employee’s pregnancy-related limitation prevents her from fulfilling certain job duties, an employer is not obligated to treat her any differently than it would treat a non-pregnant employee who is in a similar position. In addition, the PDA does not require employers who provide a disability accommodation to any disabled worker or a specific group of disabled workers to unconditionally provide the same accommodation to all pregnant workers with comparable limitations.
The determination of whether an employer should afford a particular employee an accommodation for a pregnancy-related limitation requires an examination of the facts and circumstances in each individual case, including an examination of how others “similar in their ability or inability to work” are treated.
The Equal Employment Opportunity Commission (EEOC) has published “Enforcement Guidance on Pregnancy Discrimination and Related Issues” in an effort to assist employers in maneuvering through this murky area of the law. The published guidance includes suggested best practices for reducing the risk of pregnancy-related PDA violations, such as ensuring that light duty policies are structured so as to provide pregnant employees access to light duty equal to that provided to people with similar limitations on their ability to work and reviewing workplace policies that limit employee flexibility with respect to fixed work hours to ensure they are necessary for business operations. The complete guidance can be accessed here.
Adding to the complex world of pregnancy accommodation, many states have their own pregnancy discrimination laws for which covered employers must comply. For example, Louisiana has its own Pregnancy Discrimination Act, La. R.S. 23:341, et seq., that contains different obligations than the federal PDA and generally treats pregnancy and pregnancy-related medical conditions like other temporary disabilities.
There is no easy answer when it comes to the accommodation of pregnancy-related limitations that fall outside the scope of the ADA. It is critical that employers seek guidance from legal counsel experienced in these matters when faced with requests for accommodations with respect to pregnancy and pregnancy-related limitations.

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