Topics include the following:
- issues related to COVID-19 in the workplace, including paid leave rights and benefits, return to work standards, and work-from-home arrangements
- Supreme Court decisions on sexual orientation discrimination, Age Discrimination in Employment Act and Equal Pay Act
- new regulations under the Fair Labor Standards Act
- expansion of employee rights and employer obligations under Illinois Law
- upcoming anti-harassment training deadline
- legal requirements taking effect in the second half of 2020 and in January 2021
- the impact of a California court’s decision regarding gig workers
- and more…
1. September 24, 2020
Hot Topics in Labor & Employment Webinar
Presented by:
Laura Friedel
Peter Donati
Becky Canary-King
LPLegal.com
2. What we’ll cover today…
Supreme Court Developments
NLRB and other administrative Developments
Illinois & Chicago Updates
Other State Developments
COVID-19 and the Workplace
FFCRA & PPP
State & Local laws
Unemployment
Return to Work
2LPLegal.com
3. Supreme Court Developments
• Bostock v. Clayton County
• Title VII bars discrimination based on being gay or
transgender
• Already cited by judges in cases regarding use of bathrooms,
sports, healthcare, and housing
• Babb v. Wilkie
• Federal employees must only prove “differential treatment
based on age,” not “but for” causation
• Comcast Corp. v. NAAAOM
• Non-employment case with employment implications
• “But for” causation applies to claims under Section 1981
3LPLegal.com
4. Supreme Court Developments
• Our Lady of Guadalupe School v. Morrisey-Berru
• Can 5th grade teachers at religious school bring claim
• 1st Amendment gives church right to decide whom to employ
in positions that the church deems critical to its religious
mission
• Little Sisters of the Poor v. Pennsylvania
• Government may expand exemption for employers who have
religious or moral objections to portion of ACA requiring no-
cost contraceptives to employees
• Thole v. U.S. Bank
• Participants in defined benefit plan cannot sue about financial
mismanagement of assets unless they can show that they
have been harmed
4LPLegal.com
5. NLRB Developments: Elections
• Background: 2014 “Quickie Election” Rules
• Representation Election Rules (eff. May 31, 2020)
• Partially overturned
• Changes to procedural requirements: timelines, notice,
hearing, post-hearing brief
• Election Protection Rules (eff. July 31, 2020)
• Blocking charges
• Voluntary Recognition
• Proof of Recognition in construction industry
• Proposed Rule: Reinstate Excelsior requirement
• COVID Recommended Election Protocols
5LPLegal.com
6. NLRB Developments
• What is protected speech? (General Motors)
• Concern: conflict with anti-discrimination laws when
racist & harassing speech protected
• Wright Line “burden shifting” approach: employer can
prevail if shows that it would have imposed discipline
for activity even if no Section 7 activity
• Joint Employer Rule (eff. April 27, 2020)
• Test: Whether possesses “substantial direct and
immediate control” over essential terms & condition of
employment except if “routine & limited”
• Essential: wages, benefits, hours, hiring, discharge,
discipline, supervision, and direction
6LPLegal.com
7. Other Administrative Law Developments
FLSA Fluctuating Work Week Regulation
• A way to provide a set weekly salary to non-exempt
employees but instead of calculating OT by dividing
weekly salary by 40, you divide by actual number of
hours worked, and then pay “half time” for hours over 40
• To use, hours must vary week to week
• MUST have written agreement
• Amended effective August 7th
• Can pay bonuses and other incentive pay (i.e. hazard pay and
commissions) when using fluctuating work week
• Must include in calculation of overtime rate
7LPLegal.com
8. Other Administrative Law Developments
FLSA Retail & Service Sales Exemption (7(i))
• Special exemption for sales employees of retail and service
establishments
• Historically, what businesses qualify has been based on
unclear criteria and outdated lists of types of
establishments covered
• Amended in May 2020
• DOL withdrew prior lists of “qualified” businesses
• Now, just looks at the definition
8LPLegal.com
9. Other Administrative Law Developments
FLSA Retail & Service Sales Exemption (7(i))
“an establishment 75 per centum of whose annual
dollar volume of sales of goods or services (or of
both) is not for resale and is recognized as retail
sales or services in the particular industry.”
• No real change in position, rather takes focus off
industry labels and makes it a fact-specific inquiry
• Does not apply in all states
Note: even if the establishment qualifies, the employee still must meet
certain requirements to qualify
9LPLegal.com
10. Other Administrative Law Developments
DOL Independent Contractor Classification
Proposed Rule – Hot Off the Presses!
• Proposed rule announced Tuesday – targeted for
finalization before potential change in administration
• Seen as a favorable change for employers that will make it
easier to classify workers as independent contractors
• Adopts “economic reality” test to determine whether a
worker is an employee or not
• Identifies 2 core factors & 3 additional factors to consider to
determine “economic reality”
10LPLegal.com
11. Other Administrative Law Developments
DOL Independent Contractor Classification Proposed
Rule (cont.)
Core Factors:
1. The nature and degree of the worker’s control over the work.
2. The worker’s opportunity for profit of loss based on their initiative
or investment.
Other Factors:
3. Amount of skill required for the work.
4. Permanence of the working relationship.
5. Whether the work is part of an integrated unit of production.
11LPLegal.com
12. Other Administrative Law Developments
OFCCP Disability Self-Identification Requirements
• Only applies to federal contractors and subcontractors
• Effective May 5, 2020, Office of Management and Budget
approved a new Disability Self-Identification Form (other
language versions also available)
• New form required as of August 4, 2020
• Self-identification remains voluntary
• Maintain confidentiality / in separate files
12LPLegal.com
14. Illinois Developments
Workplace Transparency Act
• Prohibits agreements which limit disclosures about unlawful
employment practices or require an employee to waive,
arbitrate or otherwise diminish claims
• Exceptions for certain bilateral agreements and settlement
agreements if criteria are satisfied
• Illinois employers are required to conduct annual anti-
harassment training
• IDHR has made model training available
• Revise harassment policies to encompass non-employees
• Disclosure of adverse judgments or administrative rulings to
IDHR July 1, 2020 and every year thereafter
14LPLegal.com
15. Illinois Developments
• Biometric Information Privacy Act (BIPA)
• Policy, notice, and consent requirements
• Ongoing class action litigation against employers, frequently
related to biometric timeclocks
• Rosenbach v. Six Flags (Ill. 2019) - Actual injury resulting from an
alleged BIPA violation not required to be “aggrieved” by statutory
violation
• Bryant v. Compass Group (7th Cir. 2020) – Federal standing for
technical violations, opening strategic option for defendants to
remove case to federal court
• School Visitation:
• 8 hours of unpaid time off for school conferences – added
behavioral meetings and academic meetings
15LPLegal.com
16. Chicago Developments
Fair Workweek Ordinance
• Requires certain employers to give lower wage workers
advance notice of their schedules and stick to them or face
significant financial penalties
• Only applies in certain industries
• Went into effect July 1st, but no private suits for violations
before January 1st
16LPLegal.com
17. Chicago Developments
Paid Sick Leave Ordinance (amended effective July 31, 2020)
• Applies to employers with even one covered employee
regardless of whether the employer has a Chicago worksite
or is subject to business license requirements (newly covered
employers must provide notice)
• Expands coverage to include certain employees
(outside sales,
members of religious
organization,
student workers,
motor carriers)
17LPLegal.com
18. Chicago Developments
18LPLegal.com
Paid Sick Leave Ordinance (cont.)
• New Rules
• Must provide individual notice annually with first paycheck on
or following July 1st
• Notices must be in English and other languages spoken at
the facility
• New record requirements
for employers with
tipped employees
• New complaint
procedures
Note: Check on whether your
municipality has opted back in
to Cook County ordinance!
19. Other State Developments
• California
• Bill awaiting signature of Governor Newsom that would
require reporting of pay data
• Expansion of paid leave benefits to smaller employers
• Independent contractors
• Battle with Uber and Lyft
• Law giving new exceptions to limits on independent
contractors
19LPLegal.com
21. Family First Coronavirus Response Act
(FFCRA)
• Covered Employers:
• Employers with fewer than
500 employees
• Some exceptions for employers
less than 50
• Two Components
• Emergency Paid Sick Leave (all employees)
• Extended Family Medical Leave (employees employed
at least 30 days)
• Refundable payroll tax credit for all paid leave
• Need proper documentation
Applicable until: December 31, 2020
21LPLegal.com
22. Family First Coronavirus Response Act
(FFCRA)
EPSL: Two Weeks (Up to 80 hours) of paid leave
1. Subject to a quarantine or isolation order
2. Advised by a health care provider to self-quarantine
3. Experiencing symptoms and is seeking medical diagnosis
4. Caring for an individual subject to (1) or (2)
5. Caring for a child whose school or place of care is closed (or child
care provider is unavailable) due to COVID-19
6. Other conditions as specified by Health and Human Services
Pay:
• 100% of regular rate (up to $511/day ) for 1, 2, 3
• 2/3 of regular rate (up to $200/day) for 4, 5, 6
22LPLegal.com
23. Family First Coronavirus Response Act
(FFCRA)
Expanded FMLA (EFMLA)
Available for employees caring for a child whose school or
place of care is closed (or child care provider is unavailable)
due to COVID-19
• Available if school has gone remote or is open part-time to
child
• Not available if employee chooses not to send child to school
due to COVID-related concerns
Pay
• 2 weeks unpaid (concurrent with EPSL paid leave)
• 10 weeks paid at 2/3 regular rate (up to $200/day)
23LPLegal.com
24. Coronavirus Aid, Relief, and Economic
Security Act (CARES Act)
• Paycheck Protection Program (PPP)
• Designed to provide direct incentives for small businesses to
keep their workers on the payroll
• Applications closed on August 8; forgiveness platform
opened August 10
• Potential implications for corporate deals
• Economic Injury and Disaster Relief Loan (EIDL)
• Designed to provide economic relief to small businesses
experiencing a temporary loss of revenue
• Applications open until Dec. 31, 2020
24LPLegal.com
25. Illinois & Local Coronavirus Laws
• Chicago Anti-Retaliation Ordinance
• Prohibits employers from terminating or demoting
employees for obeying an order issued by the Mayor, the
Governor, DPH or health care provider related to COVID
• Local Travel Ordinances
• Chicago – Required
• Required 14-day quarantine, even if negative test
• List of states update weekly
• FFCRA leave available during quarantine
• Managing PTO/Vacation requests
• Cook County & Lake County – Recommended 14 days
• Illinois & Chicago Guidelines by industry
25LPLegal.com
26. State Coronavirus Laws
• Paid Sick Leave
• New York, Colorado, DC & CA localities
• COVID-specific guidance for existing laws
• State OSHA Plans
• VA: Training & Policy requirements
• Elsewhere: safety guidance
• Mask Requirements
• Travel Ordinances
• Other COVID Guidance
26LPLegal.com
27. Unemployment Benefits
• CARES Act authorized 13-week extension of
unemployment benefits
• Boost to weekly amount under CARES Act expired
July 31
• By executive order, President Trump has made
available additional funds to supplement benefits
• Recent reports suggest that amount will be as much as
additional $300/week for workers in Illinois, but…
• Money may only last three weeks and 55,000 people
who currently receive <$100/week in benefits not
eligible
27LPLegal.com
28. Return to Work
Safe Workplace Standards & Return to Office Requirements:
Workplace rules and physical changes
• OSHA General Duty Clause
• Not one-size-fits-all – make sure it works for your business and
space
• Lots of different components. See our guide.
• Consider acknowledgments, not waivers
• Think not just about employees but about all in workplace
28LPLegal.com
29. Return to Work
Safe Workplace Standards & Return to Office Requirements:
Testing and Self-Certification
• EEOC has given employers broad rights in response to COVID
• Can request medical information (self certification)
• Can require testing
• Taking temperatures
• COVID test – NOT antibody tests!
• Make sure you…
• Limit who receives information
• Keep medical information confidential
The next frontier…vaccine requirements
29LPLegal.com
30. Return to Work
Safe Workplace Standards & Return to Office Requirements:
Responding to Positive Cases
• Positive case vs. contact
• Close for cleaning - CDC standards
• Communication Plan
• Return to work – current CDC guidelines
• No symptoms + close contact = 14 days from exposure
• At least 10 days from first symptom/diagnosis and no fever for 24
hours (w/o meds) and symptoms have improved
• Diff. rules for critical infrastructure employees
30LPLegal.com
31. Return to Work
Safe Workplace Standards & Return to Office Requirements:
Requests for accommodation
• Only required if accommodation is needed due to disability or
pregnancy (and theoretically religion)
• Usually involves requests for remote work, but could also involve
PPE or other accommodations
• Issue – when do we invite employees to request?
• Standard analysis
• Go through interactive process
• Don’t assume remote work isn’t a reasonable accommodation
• Consider other alternatives
31LPLegal.com
32. Remote Work
If requiring, make sure you are considering….
• Wage & Hour laws
• Paying for all time worked (especially non-exempt employees)
• Breaks
• Paid sick leave
32
• Information security
• Employee management and
engagement
• Safe at-home workplace
• Reimbursing expenses incurred
working from home
• Importance of expense
reimbursement policy
LPLegal.com
