Category: Proposed Legislation

New Illinois Employment Laws Take Effect

Posted by Quinton Osborne on

Although Illinois enacts laws throughout the year, most statutes go into effect on January 1 of the coming year. There are almost 200 new laws passed in 2016 that have gone into effect this week. To bring us into the new year, below are the most important laws that went into effect this week that will impact Illinois employees:

Fireworks

Employee Sick Leave Act (PA 99-0841)

This Act, which I have previously discussed here, is likely the most important piece of legislation passed in 2016 that will benefit the greatest amount of Illinois employees. The law applies to every Illinois employer that provides sick leave to employees. If the company chooses to provide sick leave to employees to care for themselves, then it must also allow the employee to take sick leave to care for the employee’s sick or injured family members. The Act also prohibits employers from retaliating against employees for using sick leave under the act.

Domestic Workers’ Bill of Rights (PA 99-0758)

As I previously blogged about, this law provides workplace protections to “domestic workers,” which include housekeepers, nannies, and caregivers, among other individuals. The law provides domestic workers with many workplace protections to which most other professions are already entitled. This includes minimum wage and overtime, rest breaks, and protections against illegal discrimination.

Right to Privacy in the Workplace Act (PA 99-0610)

The legislature significantly amended the Right to Privacy in the Workplace Act. The Act clarifies that that employers are prohibited from requesting or requiring employees or applicants to authenticate or access a personal online account (such as a facebook or twitter account) in the presence of the employer.

Victims’ Economic Security and Safety Act (PA 99-0765)

The Victims’ Economic Security and Safety Act (VESSA), requires companies to provide employees leave if he or she has been a victim of domestic or sexual violence, or has a family member who is a victim. The previous version of the law only provided leave to employees who worked for companies which employed at least 15 or more employees. However, in 2016, the law was amended to allow leave for individuals regardless of the amount of employees.

The length of the leave period is dependent on the amount of the company’s employees. If the company employs more than 50 employees, the individual is entitled to 12 workweeks of leave during any 12-month period. If the company employs between 15 and 50 employees, the individual is entitled to 8 workweeks. If the company employs between 1 and 14 employees, the individual is entitled to 4 workweeks of unpaid leave.

Illinois Freedom to Work Act (PA 99-0860)

I have extensively blogged about Jimmy John’s inappropriate and unnecessary non-competes with low-wage employees. After several lawsuits against the companies, bad press, and settlements, Jimmy John’s is no longer able to use the impermissible non-competes on low-level employees. In addition, Illinois passed the Illinois Freedom to Work Act, which prohibits such non-compete agreements with individuals earning $13 or less.

These are the most important new Illinois employment laws affecting workers. I will continue to monitor and update you on important case law and legislative updates that affect Illinois workers, including the new and hotly disputed federal overtime rule. If you think any Illinois workplace laws have been violated, contact an attorney immediately.

Illinois Enacts New Non-Compete Law

Posted by Quinton Osborne on

Businesses can have very legitimate reasons for implementing covenants not to compete (non-competes) with their employees. In Illinois, there are primarily two ways companies can justify subjecting employees to non-competes: (1) protecting confidential trade information; and (2) protecting customer relationships. In evaluating whether a non-compete is valid, a court will determine whether the provision: (1) is no greater than is required for the protection of a legitimate business interest of the employer-promisee; (2) does not impose undue hardship on the employee-promisor; and (3) is not injurious to the public. See Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 393, 396 (Ill. 2011).

Jimmy John’s Non-Compete Agreements

There are certainly “close cases” when it comes to the enforceability of non-competes. Whether a restriction should last for one or two years, restrict competition within 50 or 100 miles, or limit the applicability of the non-compete to a specific type of business activity are all likely relevant in whether a non-compete will have any force. However, the non-compete Jimmy John’s required its employees to sign was certainly not a close case. The sandwich company required all employees to sign a non-compete (the entire agreement can be found here), prohibiting the employee from working for any business which derives more than 10% of its revenue from sandwiches, and located within 3 miles of any Jimmy John’s restaurant for a period of two years. The agreement does not even attempt to justify why a non-compete is necessary, as most do.

Sandwich

Thus, if enforceable, the vastly overbroad provision would likely prevent a former Jimmy John’s employee from working at other sandwich-making restaurants such as Subway and Mr. Goodcents, but it would also prohibit the employee from working at McDonald’s, Arby’s, Burger King, and many (if not most) other fast-food restaurants.  Not only that, but as many fast food restaurants are within three miles of a Jimmy John’s, it would prevent the employee from working at any of the restaurants nation-wide!

It is mind boggling why someone thought this non-compete was necessary. Jimmy John’s employees do not have any secret information when making your sub. In fact, a customer can watch the employee make the entire sandwich. Jimmy John’s employees also do not have protectable customer relationships.  Even if the company had protectable interests, a court would likely find the non-compete was not limited to those interests. Instead of restricting the non-compete to sub sandwich restaurants near the particular Jimmy John’s, it restricted employment to basically all restaurants in the country.

Fortunately, the non-competes caught the attention of the Attorney Generals in Illinois and New York, and both states filed suit against the company for unfair conduct in violation of the States’ Consumer Fraud and Deceptive Business Practices Acts. The company soon caved, and agreed to not enforce any previous non-competes, and not require new employees to sign the provisions.

Illinois Freedom to Work Act

To prevent future oppressive conduct by companies, Illinois recently enacted the Illinois Freedom to Work Act. The Act prohibits employers from entering into non-competes with employees who earn $13 or less per hour. If the employer chooses to enter into the non-compete with such “low-wage employee,” the Act deems the covenant illegal and void. The Act becomes effective on January 1, 2017, and only applies to agreements entered after that date.

The moral of the story is that if you are contemplating signing a non-compete, or are not sure how an already-signed non-compete will affect you, consult an attorney immediately. Do not assume that all non-competes are enforceable in DuPage County or elsewhere in Illinois, because as Jimmy John’s showed, they often are not.

 

Governor Rauner Signs Domestic Workers Bill of Rights into Law

Posted by Quinton Osborne on

I previously posted that Illinois was on the verge of passing HB1288, the Domestic Workers Bill of Rights. Thankfully Governor Rauner has now signed the bill, making Illinois the seventh state to adopt the type of law. The Act provides much-needed workplace protections and entitlements to housekeepers, nannies, and caregivers, among other types of domestic jobs.

Signature

The statute amends different Illinois employment-related laws to provide domestic workers numerous workplace protections. Starting January 1, 2017, domestic workers will be protected from illegal discrimination under the Illinois Human Rights Act, 820 ILCS 5/1-101, entitled to minimum wage and overtime under the Illinois Minimum Wage Law, 820 ILCS 105/1, and entitled to certain rest breaks under 820 ILCS 140/1, among other protections and entitlements.

It is disappointing Illinois did not provide these basic workplace protections to domestic workers in the past. However, at least the legislature and governor took the necessary steps to finally provide these employment protections to domestic workers that most other Illinois employees already enjoy.

Discrimination Based on Sexual Orientation

Posted by Quinton Osborne on

Imagine this situation. You are a model employee at your company. You arrive to work early, stay late, and work hard. One day, your boss pulls you into his office with some unfortunate news. Your boss admits that you are a great worker. However, he says that he recently learned that you are gay, and for that reason alone, you’re fired. Did your boss break the law by firing you based on your sexual orientation? Although it might surprise you, under federal law, most courts have found this type of termination is perfectly legal.

Federal Law – Title VII

Title VII of the Civil Rights Act of 1964 is a federal law which prohibits many employers from discriminating against employees. Title VII makes it an “unlawful employment practice for an employer to fail or refuse to Rainbow Flaghire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Thus, the question is whether discrimination based on sexual orientation is considered discrimination because of an individual’s sex. The Equal Employment Opportunity Commission takes the position that Title VII prohibits sexual orientation discrimination. In fact, earlier this year the EEOC filed two lawsuits on behalf of employees claiming they were discriminate against based on their sexual orientation. One of these lawsuits has already settled.

Despite the EEOC’s position on sexual orientation discrimination under Title VII, most courts around the Country have found Title VII does not prohibit sexual orientation discrimination. Last week, the Seventh Circuit Court of Appeals, which covers Illinois, also found Title VII does not cover sexual orientation discrimination. The Court relied heavily on Seventh Circuit precedent finding sexual orientation is not a Title VII protected characteristic. See Hamner v. St. Vincent Hosp. Health Care Ctr.., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000). In essence, the Court held Title VII prohibits discrimination based on a person’s gender, not a person’s sexual orientation. See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014). The Supreme Court has not ruled on the critical rift between the EEOC and most Circuit Courts.

Congress has attempted to change Title VII to include sexual orientation as a protected characteristic. Since 1994, every Congress except the 109th has proposed the Employment Non-Discrimination Act. The Act would amend Title VII to prohibit sexual orientation and gender identity discrimination. Until Congress passes any legislation or the Supreme Court rules on the issue, we are likely stuck with the current state-of-affairs regarding sexual orientation discrimination at the federal level.

State and Local Laws

Even though most courts have found federal law does not prohibit sexual orientation discrimination, some states have enacted legislation prohibiting the discrimination. For example, the Illinois Human Rights Act prohibits discrimination “against any individual because of his or her … sexual orientation … ” 775 ILCS 5/1-102(A). Some municipalities also prohibit discrimination within the city or county.  For example, Cook County prohibits sexual orientation discrimination in employment decisions. To see which states prohibit which types of discrimination, see this website created by the Human Rights Campaign. Under the “select and issue” tab, select “statewide employment laws & policies.”

Also keep in mind that even some employers are not subject to any anti-discrimination laws as to sexual orientation, they are free to implement their own policies that prohibit this type of discrimination. Although not legally required (at least no yet), it would still be the right thing to do.

Developments in New Overtime Rule

Posted by Quinton Osborne on

As I previously discussed, the Department of Labor created a new overtime rule that will increase the salary threshold for so-called “white-collar” employees to be exempt from overtime.  Currently white-collar employees are exempt from overtime if they are paid a salary of $23,660 and meet other job duties qualifications.  However, the Department of Labor is increasing that threshold to $47,476.  This means white-collar employees earning less than this amount will be entitled to time-and-a-half for all overtime worked.  The new rule is set to take effect on December 1, 2016.

114th_United_States_Congress

Opponents of the new rule, largely Republicans, have already fought hard to prevent the rule from becoming implemented.  Senate Republicans initially contemplated blocking the rule by including a rider on this year’s Appropriations bill.  Such a rider would cut off funding necessary to implement the rule.  However, Republicans did not end up including the rider in the bill, knowing such a rider would likely result in a veto from President Obama.

Senators have also introduced a resolution (S.J. Res. 34) to block the overtime rule.  The resolution was only backed by Republicans.  The President is required to sign any resolution preventing the rule (per INS v. Chahda, 462 U.S. 919 (1983)), meaning Congress would need a two-thirds vote to override any veto.  As President Obama proposed and announced the overtime rule, a veto would be inevitable, and Republicans would be unable to override it.

However, legislators on both sides of the aisle have proposed changes to the new Overtime Rule.  This month, Representative Kurt Schrader (D-OR) introduced H.R. 5813.  The law would phase in the Department’s overtime rule over a period of three years.  It would increase the threshold as follows:

  • December 1, 2016: $35,984
  • December 1, 2017: $39,814
  • December 1, 2018: $43,645
  • December 1, 2019: $47,476

GovTrack currently gives the bill a 1% chance of becoming a law.  However, we will closely follow this and other related proposed legislation as it will determine whether a large amount of workers are entitled to overtime pay.

Illinois on the Verge of Getting Domestic Workers Bill of Rights

Posted by Quinton Osborne on

On June 26, 2016, the Illinois General Assembly approved the Illinois Domestic Workers Bill of Rights.  In short, the law would provide greater workplace protections for domestic workers, such as caregivers and house cleaners, that were previously unavailable.  The bill is sitting on Governor Bruce Rauner’s desk for his signature.

CleanerWhat’s the Problem?

Domestic workers are not protected by many federal and state employment laws.  Many laws protecting workers only apply to companies with a minimum number of employees.  For example, Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees, the Family and Medical Leave Act only to employers with 50 or more employees, and the Age Discrimination in Employment Act applies to employers with 20 or more employees.  As most companies employing domestic workers only have a few employees, these laws do not effectively protect them.

Moreover, some laws specifically exclude domestic workers from the employment protections.  For example, the National Labor Relations Act, which allows employees to form a union and negotiate for better pay, does not protect individuals “in the domestic service of any family or person at home.” 29 U.S.C. § 152(3).  Similarly, the Occupational Safety and Health Act, which sets minimum standards of health and safety at the workplace, does not cover domestic workers. 29 C.F.R. § 1975.6.

Domestic Workers Bill of Rights

The proposed legislation adds several employment protections for domestic workers.  The bill generally applies to people performing “domestic work,” which includes housekeeping, nanny services, caregiving, and companion services, among other duties.   The bill provides the following protections for domestic employees:

  • The bill allows domestic workers to be protected by Illinois’ Human Rights Act, which prohibits discrimination in Illinois with respect to employment on the basis of race, color religion, sex, national origin, ancestry, military status, age, marital status, sexual orientation, and disability.
  • The bill adds domestic workers as individual covered by the Illinois Minimum Wage Law, which mandates Illinois employers to pay their employers the minimum wage (currently $8.25) and overtime for all hours worked over forty in a given week.
  • Domestic workers must be allowed to have a 24-hour consecutive rest break in every calendar week. The domestic worker can voluntarily agree to work on such day of rest, but the employer is required to pay all hours worked on the rest day the overtime rate, even if the employee has not worked at least forty hours in the given week.

The Governor has 60 days to take action on the legislation.  If he approves the bill, it will become effective on January 1, 2017.  Domestic workers are often overworked and underpaid, and it is good to see these long-overdue employment protections close to becoming Illinois law.