Labor and Employment Law Update

Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. We cover topics including addressing harassment and discrimination in the workplace, developing labor law, navigating through ADA(AA), FMLA and workers’ compensation issues, avoiding wage and hour landmines, key legislative, case law and regulatory changes and much more! Learn more about our firm at www.salawus.com.

Blog Authors

Latest from Labor and Employment Law Update

Contributed by Suzanne Newcomb, August 5, 2020 As our readers know, the Families First Coronavirus Relief Act (FFCRA) requires employers with less than 500 employees to provide paid leave to employees who are unable to work (or telework) for a variety of COVID-related reasons (including caring for children not in school due to COVID) though December 31, 2020. On April 6, the U.S. Department of Labor (DOL) issued a final rule implementing the FFCRA. Shortly thereafter, the State of New York filed suit claiming the regulations unduly restrict employees’ right to paid leave. This week a federal judge in…
Contributed by Steven Jados, July 29, 2020 Layoffs have become a reality for many businesses and employees in recent months, and this unfortunate trend seems likely to continue as we head toward the fall and winter months. The U.S. Supreme Court’s recent decision in Bostock v. Clayton County highlights additional considerations—beyond simply protecting LGBT employees—that businesses must factor into decisions regarding which employees to layoff, and which to retain. As we previously wrote, the Supreme Court’s Bostock decision essentially held that the anti-discrimination protections of Title VII of the Civil Rights Act of 1964 extend to LGBTQ employees.…
Contributed by Michael Wong, July 24, 2020 With COVID-19 cases surging in numbers, the legal implications of face mask policies for businesses have taken center stage again. First a quick recap, from my prior article, ADA Implications, I Don’t Want To Wear a Mask…: Businesses can require employees to wear masks at work and customers to wear face masks when coming into businesses; Businesses can refuse entry or ask customers to leave if they refuse to wear a face mask; For both employees and customers that say they cannot wear a face mask due to a disability or…
Contributed by Beverly Alfon, July 22, 2020 In a decision issued yesterday, General Motors LLC, 369 NLRB No. 12 (2020) , the National Labor Relations Board declared that “[it] will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.” Prior to yesterday’s decision, employees who engaged in obscene, racist, and sexually harassing speech in the course of activity otherwise protected by the NLRA, were protected by various setting-specific standards that provided leeway to employees to engage in such conduct…
Contributed by Allison P. Sues, July 15, 2020 The Supreme Court declined to review a Ninth Circuit decision that would have answered a question currently splitting the circuits: may an employer consider employees’ salary histories in setting their current pay without violating the Equal Pay Act (EPA)?  As discussed in our previous blog article on January 14, 2019, the EPA prohibits employers from paying wages to employees of one sex less than employees of the other sex for equal work. The EPA holds employers strictly liable for differential pay, regardless of whether the employer had discriminatory intent, unless…
Contributed by John Hayes, July 14, 2020 On July 8, 2020 the United States Supreme Court ruled that the U.S. civil rights laws barring discrimination on the job do not apply to most lay teachers at religious elementary schools. The decision extends earlier Supreme Court rulings that shielded religious organizations from employment-discrimination claims by ministers, called the “ministerial exception.” This principle, which courts derived from the First Amendment, bars the government from telling a religious institution whom to choose as its faith leaders. Respecting that principle sometimes requires the courts to stay out of employment disputes when the employer…
Contributed by Suzannah Wilson Overholt, July 2, 2020 After schools and day cares closed in the spring due to the pandemic, employers and parents alike were hopeful that summer would bring a return to normalcy – especially in the form of camp for kids. Alas, that hope has not become a reality as many states have either delayed or prohibited the opening of camps. What are employers and working parents to do? On June 26, the federal Department of Labor issued guidance stating that, under certain circumstances, an employee whose child’s day camp is closed as a result of…
Contributed by Suzannah Wilson Overholt, July 1, 2020 As has come to be expected, the guidance regarding COVID-19 has changed again. This time the CDC narrowed the definition of who constitutes a “close contact” for purposes of tracing people with potential exposure to someone who has COVID-19. While a “close contact” is still defined as someone who was within 6 feet of an infected person for at least 15 minutes, what has changed is when the exposure occurred during the ill person’s sickness. The relevant time is now from two days before illness onset (or, for asymptomatic patients, two…
Contributed by Michael Wong and Sara Zorich, June 26, 2020 It’s that time of year and even a pandemic will not stop Illinois, Cook County and the City of Chicago from increasing their minimum wages on July 1, 2020 as follows: Non-Tipped Employees Tipped Employees(Claiming the Tip Credit) Illinois (all employers) $10.00 per hour $6.00 per hour Cook County (employers in municipalities that did not opt-out) $13.00 per hour $6.00 per hour* *Technically, the Cook County Minimum Wage Ordinance for tipped employees only increases to $5.30. However, since that is less than the new State minimum wage for tipped…
Contributed by Carlos Arévalo, June 24, 2020 On June 18, 2020, the Illinois Supreme Court ruled that enforcement of a union contract provision mandating the destruction of disciplinary records was against Illinois’ public policy of preserving and retaining public records. The decision settles an ongoing dispute between the City of Chicago and the Fraternal Order of Police, Chicago Lodge No. 7 (FOP) about the disposition of disciplinary records. Since 1981, the parties’ contract has included a requirement that disciplinary records be destroyed after five years. Things changed in 1991 when a federal court in a civil rights lawsuit ordered…
Contributed by Rebecca Dobbs Bush, June 23, 2020 As written about previously, the Paycheck Protection Program Flexibility Act, while short in text, went to great lengths in helping borrowers extend their “covered period” and maximize forgiveness.  As such, the previously issued forgiveness application needed to be revised. Last week, on June 16, 2020, the SBA released a revised forgiveness application, a short-form and corresponding instructions for both. Generally, the short form is available for: 1) self-employed individuals; 2) those that did not reduce salaries by more than 25% and did not lay off any employees; or 3) those…
Contributed by John Hayes, June 15, 2020 On June 15, 2020 the United States Supreme Court handed down a momentous decision ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender employees from workplace discrimination. The decision consolidated three cases where the employees were terminated from their jobs: two separate cases involving the terminations of gay employees; and one case involving the termination of a transgender employee. The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr.…
Contributed by Rebecca Dobbs Bush, June 5, 2020 On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act. Notable changes will allow businesses more time to spend loan proceeds on permitted costs. This is significant relief for those businesses that were unable to continue operations and bring employees back to work.  With many of those employees being lower paid, paying them to stay at home was not well received as it interfered with the higher amounts of unemployment compensation they could otherwise receive. The significant changes allowed by the PPP Flexibility Act are: The period during…
Contributed by Peter Hansen, May 28, 2020 Chicago employers take note – beginning July 1, 2020, you may be required to post work schedules at least 10 days in advance in order to comply with the Fair Workweek Ordinance. This seems like as good a time as any for a refresher on the Ordinance. Are We Subject to the Ordinance? Generally, employers must comply with the Ordinance if they meet each of the below conditions: They employ 100+ employees (both inside and outside of Chicago) or, for non-profit corporations, 250+ employees; They employ 50+ employees who spend the majority of…
Contributed by Jacqueline Lentini McCullough, May 27, 2020 U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns. The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level. Here are six situations I am helping clients navigate. Work-from-Home Effect on H-1Bs U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with some of the modern…
Contributed by guest author Matthew Horn, May 26, 2020 After the Workers’ Compensation Commission withdrew its proposed Emergency Rule declaring that any employee in an “essential industry” contracting COVID-19 will be rebuttably presumed to have contracted COVID-19 at work, the legislature and business groups met and worked through a proposed amendment to the Workers’ Compensation Act addressing the issue. Under the proposed amendment, which appears set to pass, first responders, frontline workers, and most “essential employees” will be rebuttably presumed to have contracted COVID-19 at work, if they have a confirmed case of COVID-19, and the presumption is…