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Latest from Jeffrey J Kmoch Blog

Disturbingly, as America comes to grips with the COVID-19 coronavirus pandemic, No national emergency, however severe, could possibly ever justify such senseless racism and bigotry. If this reported behavior carries over into the workplace, and employers discriminate against Asian Americans by, for example, disproportionately terminating them, cutting their hours, or otherwise treating them less favorably (as compared to non-Asian Americans), they likely are in violation of both state and federal anti-discrimination law, which both cover race and national origin as protected classes. Workers should be aware, however, that not everything that comes off as racist or bigoted will automatically give…
Disturbingly, as America comes to grips with the COVID-19 coronavirus pandemic, numerous reports have emerged that some people are lashing out against people of Asian descent blaming them for the virus and its spread. No national emergency, however severe, could possibly ever justify such senseless racism and bigotry. If this reported behavior carries over into the workplace, and employers discriminate against Asian Americans by, for example, disproportionately terminating them, cutting their hours, or otherwise treating them less favorably (as compared to non-Asian Americans), they likely are in violation of both state and federal anti-discrimination law, which both cover race and…
The federal Department of Labor (DOL) released its long-awaited final rule to revise and update its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA), which governs responsibility for payment of minimum wages and overtime. This rule rolls back the Obama administration’s much broader definition of joint employer and replaces it with a four-factor test that looks to who maintains the power to hire and fire, to supervise schedules and conditions of employment, to set pay, and to keep employment records. The DOL rule goes into effect March 16, 2020. The National Labor Relations Board (NLRB) and…
On May 31, 2019, the Illinois House of Representatives passed House Bill 1438, the “Cannabis Regulation and Tax Act.” Governor J.B. Pritzker, who campaigned on recreational marijuana legalization, has vowed to sign the bill into law and, if he follows through, the Act will go into effect on January 1, 2020. Before indulging, Illinois workers should be aware that the Act does not prohibit “reasonable zero tolerance or drug free workplace policies,” non-discriminatory drug testing, or prevent their employers from discharging them due to failure of a drug test. Illinois’ Historical Restrictions on Disciplining Employees for Lawful Activities Going back…
On June 2, 2019, both houses of the Illinois legislature passed Senate Bill 75, the Workplace Transparency Act (“WTA”), and Governor Pritzker is expected to sign the bill into law shortly. The WTA amends the Illinois Human Rights Act (“IHRA”), expanding protections for Illinois workers against discrimination and harassment by: Extending the IHRA to prohibit discrimination and harassment against “nonemployees” in the workplace (e.g. contract workers and consultants); Clarifying that the “work environment” is not limited to the physical location an employee is assigned to work, expanding coverage to incidents that occur outside the office; and Prohibiting discrimination and harassment…
Today, Governor Pritzker signed HB0834 into law, amending Illinois’ Equal Pay Act to now prohibit employers from inquiring into job applicants’ salary or wage histories or using an applicant’s wage history, if volunteered, to screen them out of a position. Employers may still, however, ask applicants about their wage expectations. Unlike certain other jurisdictions’ wage history laws, it is unclear if the Illinois law will permit employers to ask applicants in commissions-driven fields what their current production or revenue numbers are as a backdoor to calculating or estimating their wages. Applicants whose rights under the Act have been violated may…
Today, Governor Pritzker signed HB0834 into law, amending Illinois’ Equal Pay Act to now prohibit employers from inquiring into job applicants’ salary or wage histories or using an applicant’s wage history, if volunteered, to screen them out of a position. Employers may still, however, ask applicants about their wage expectations. Unlike certain other jurisdictions’ wage history laws, it is unclear if the Illinois law will permit employers to ask applicants in commissions-driven fields what their current production or revenue numbers are as a backdoor to calculating or estimating their wages. Applicants whose rights under the Act have been violated may…
On June 2, 2019, both houses of the Illinois legislature passed Senate Bill 75, the Workplace Transparency Act (“WTA”), and Governor Pritzker is expected to sign the bill into law shortly. The WTA amends the Illinois Human Rights Act (“IHRA”), expanding protections for Illinois workers against discrimination and harassment by: Extending the IHRA to prohibit discrimination and harassment against “nonemployees” in the workplace (e.g. contract workers and consultants); Clarifying that the “work environment” is not limited to the physical location an employee is assigned to work, expanding coverage to incidents that occur outside the office; and Prohibiting discrimination and harassment…
On May 31, 2019, the Illinois House of Representatives passed House Bill 1438, the “Cannabis Regulation and Tax Act.” Governor J.B. Pritzker, who campaigned on recreational marijuana legalization, has vowed to sign the bill into law and, if he follows through, the Act will go into effect on January 1, 2020. Before indulging, Illinois workers should be aware that the Act does not prohibit drug testing or prevent their employers from discharging them even for off-premises cannabis use during non-working hours. Illinois’ Historical Restrictions on Disciplining Employees for Lawful Activities Going back to the 1980s, Illinois has restricted employers from…
In Lau v. Abbott Labs, 2019 IL App (2d) 180456 (Ill. App., Apr. 2, 2019), the Appellate Court of Illinois 2nd District, reversed in part the trial court’s grant of summary judgment and resurrected the discharged employee’s claims of discrimination on the basis of sex, race, national origin, or age. A Plaintiff Need Not Identify Comparators of Exactly the Same Grade Level to Advance a Discrimination Claim One of the primary ways that plaintiffs establish a prima facie case of discrimination is by identifying similarly-situated co-workers from outside their protected class who were treated less more favorably than them. In…
In Lau v. Abbott Labs, 2019 IL App (2d) 180456 (Ill. App., Apr. 2, 2019), the Appellate Court of Illinois 2nd District, reversed in part the trial court’s grant of summary judgment and resurrected the discharged employee’s claims of discrimination on the basis of sex, race, national origin, or age. A Plaintiff Need Not Identify Comparators of Exactly the Same Grade Level to Advance a Discrimination Claim One of the primary ways that plaintiffs establish a prima facie case of discrimination is by identifying similarly-situated co-workers from outside their protected class who were treated less more favorably than them. In…