Category: Joshua Herman

New Labor Law SB 1754 Requires Illinois Public Bodies To Give Unions Employee Information and Creates New FOIA Exemptions and Unfair Labor Practices

By: Joshua D. Herman

joshua.herman@mhtlaw.com

On December 20, 2019, Illinois passed SB 1754 into law, imposing new obligations on public employers.

Illinois public employers (governments, school districts, park districts and other public organizations) will now have to provide regular updates and information regarding their employees to public labor unions, as well as face new obligations to avoid engaging in unfair labor practices. Originally proposed to address limited concerns under the Illinois Governmental Ethics, Senate Bill 1754 was amended to impose new requirements on public employers in Illinois. The bill was passed as Illinois Public Act 101-0620 on December 20, 2019 and was effective immediately.

Among other changes to the law, the bill adds three new Freedom of Information Act (FOIA) exemptions to 5 ILCS 140/7.5:

“(oo) Information prohibited from being disclosed under the Illinois Educational Labor Relations Act.

(pp) Information prohibited from being disclosed under the Illinois Public Labor Relations Act.

(qq) Information prohibited from being disclosed under Section 1-167 of the Illinois Pension Code.”

New Affirmative Reporting Obligations to Unions

The Illinois Public Labor Relations Act and similar provisions of the Illinois Educational Labor Relations Act have been changed to require substantially more of public employers. Many collective bargaining agreements provide that the employer shall provide certain employee information to a union upon request. Now, unless otherwise agreed, a public employer must do the following:

At least once each month and upon request,  public employers must provide “exclusive bargaining representative[s] with a complete list of the names and addresses of the public employees in the bargaining unit, provided that a public employer shall not be required to furnish such a list more than once per payroll period. The exclusive bargaining representative shall use the list exclusively for bargaining representation purposes and shall not disclose any information contained in the list for any other purpose.” Further, when providing this list, employers must now also provide an Excel file (or other agreeable editable digital file) that includes:

  • the employee’s job title,
  • worksite location,
  • work telephone numbers,
  • identification number if available,
  • any home and personal cellular telephone numbers on file with the employer,
  • date of hire,
  • work email address, and
  • any personal email address on file with the employer.

Further, within 10 calendar days from the date of hire of a bargaining unit employee, the public employer must provide to the exclusive representative, in an electronic file or other mutually agreed upon format, the foregoing list of information for the new hire.

Employers Prohibited from Disclosing Certain Employee Information

The law creates a new section in the IPLRA prohibiting employers from disclosing the following information:

  • the employee’s home address (including ZIP code and county);
  • the employee’s date of birth;
  • the employee’s home and personal phone number;
  • the employee’s personal email address;
  • any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation (including whether employees are members of such organization, the identity of such organization, whether or not employees pay or authorize the payment of any dues or moneys to such organization, and the amounts of such dues or moneys); and
  • emails or other communications between a labor organization and its members.

The new restriction mandates that employers provide or report such requests to the union or employee, depending on the circumstances. Violations of these requirements may be pursued as an unfair labor practice before the ILRB or in an action before a circuit court.

The purpose of these new restrictions is unclear, and they unnecessarily complicate information processing by public employers because the prohibition does not apply to most situations, stating explicitly that it “does not apply to disclosures (i) required under the Freedom of Information Act, (ii) for purposes of conducting public operations or business, or (iii) to the exclusive representative [i.e., the union].”

As a consequence of these new prohibitions, public bodies should exercise caution and seek legal advice before responding to requests for the restricted information from anyone other than the union.

Union Access

While not typically a problem and generally provided for in most collective bargaining agreements, the new law also codifies a union representative’s right of access to employees in the bargaining units they represent by adding a new section 5 ILCS 315/6(c-10).

Dues Deductions

The new law also codifies an employer’s obligation to deduct dues and other labor organization payments from employees pursuant to the employees agreement. The law clarifies that such dues deduction authorizations may be made irrevocable for long periods of time.

Employers must begin deductions as soon as practicable, but no later than 30 days after receiving written notice of an employee’s authorization for the same. Employers must transmit the deductions to the union no later than 30 days after they are made. Deductions must continue until the employee notifies the employer they have revoked their authorization in writing in accordance with the terms of the authorization, or the employee is no longer employed by the employer in a bargaining unit position.

Violations of these requirements are a breach of the employer’s duty to bargain and an unfair labor practice.

The Act also established a new section 5 ICLS 315/6.5 providing a defense to employers and unions following Janus as to any claims by employees seeking reimbursement for fair share fees that employees may have previously paid.

New Unfair Labor Practices

In addition to the foregoing obligations, the Act creates additional unfair labor practices by amending Section 10 of the ILRA with the following:

(8) to interfere with, restrain, coerce, deter, or discourage public employees or applicants to be public employees from: (i) becoming or remaining members of a labor organization; (ii) authorizing representation by a labor organization; or (iii) authorizing dues or fee deductions to a labor organization, nor shall the employer intentionally permit outside third parties to use its email or other communication systems to engage in that conduct. An employer’s good faith implementation of a policy to block the use of its email or other communication systems for such purposes shall be a defense to an unfair labor practice; or

(9) to disclose to any person or entity information set forth in subsection (c-5) of Section 6 of this Act that the employer knows or should know will be used to interfere with, restrain, coerce, deter, or discourage any public employee from: (i) becoming or remaining members of a labor organization, (ii) authorizing representation by a labor organization, or (iii) authorizing dues or fee deductions to a labor organization.

Further, the law explicitly requires employers to “refer all inquiries about union membership to the exclusive bargaining representative.” Therefore, the public bodies should be cautious in handling such requests.

All public bodies that are party to collective bargaining agreements should immediately review its obligations under this new law and take steps to come into compliance.

Illinois Workplace Transparency Act Imposes New Requirements on Employers

By: Joshua D. Herman

joshua.herman@mhtlaw.com

The new Workplace Transparency Act imposes significant obligations on Illinois employers beginning January 1, 2020. The Act significantly changes the legal obligations of most employers throughout Illinois, including governments and elected and appointed officials.

The Act was passed to ensure workplaces are free from unlawful discrimination and harassment by, among other things, safeguarding employees’ rights to report wrongdoing and imposing reporting and training obligations on employers.

The Act is not applicable to collective bargaining agreements and contracts that are subject to the Illinois Public Labor Relations Act or the National Labor Relations Act.

Employers Cannot Restrict or Prevent Reporting

The Act limits employer restrictions on employee reporting of allegations of unlawful conduct to federal, state, or local officials. Employers cannot subject employees to unilateral conditions of employment or enter into agreements that prevent the employee from making truthful statements or disclosures about alleged unlawful employer practices.

Settlement and termination agreements may include promises of confidentiality, so long as the employee remains able to make truthful statements or disclosures regarding illegal misconduct.

The employer cannot prohibit or prevent an employee from reporting unlawful or criminal acts by the employer, or cooperating with any investigation or prosecution by a governmental agency.

Employers Must Protect Non-employees

Effective immediately, the Act also requires employers to prohibit and take reasonable measures to prevent the harassment of nonemployees in the workplace. A “nonemployee” means a person who is not otherwise an employee of the employer and is directly performing services for the employer pursuant to a contract with that employer. “Nonemployee” includes contractors and consultants.

The Act Imposes New Reporting Obligations on Employers

Beginning July 1, 2020, and on or before July 1 of each year thereafter, employers must make required disclosures to the Department of Human Rights if they have been subject to an adverse judgment or administrative ruling in which there was a finding of sexual harassment or unlawful discrimination against the employer in the preceding year. If the Department investigates an employer for a charge under the Act, employers must also, upon the Department’s request, make disclosures of settlements for up to the last five years regarding allegations of sexual harassment or unlawful discrimination in the workplace.

Employers are prohibited from disclosing the name of the victim of an act of alleged harassment or unlawful discrimination in any of the disclosures required by the Act.

Employers who fail to make the required disclosures may be subject to civil penalties.

Sexual Harassment Prevention Training

The Act imposes new requirements on employers to provide annual sexual harassment training to employees. The Act requires the Illinois Department of Human Rights to create a model sexual harassment program, but in the meantime, employers should provide training that, at a minimum, includes:

  • An explanation of sexual harassment consistent with the Act;
  • Examples of conduct that constitutes unlawful sexual harassment;
  • A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of responsibilities of the employer in the prevention, investigation, and corrective measures of sexual harassment.

After the Department establishes the model training program, employers must use it to supplement any existing program. Failure to follow these training requirements could result in a civil penalty against an employer.

New Civil Penalties

In most cases, the Act provides that employers will be given notice of violations and 30 days to cure them. Employers who fail to cure such violations will be subject to civil penalties. The Act provides that the penalties for failures to report or train will be imposed based on the size of the employer, the good faith efforts made by the employer to comply, and the gravity of the violation. Typically, for employers having fewer than four employees, the penalties shall be $500 for a first offense, $1,000 for a second offense, and $3,000 for a third or subsequent offense. For employers having four or more employees, the penalties will typically be $1,000 for a first offense, $3,000 for a second offense, and $5,000 for a third or subsequent offense.


Employers should immediately review their policies and procedures to ensure that they are in compliance with the new law before it goes into effect on January 1, 2019.

Image of cannabis leaves

Employers must tackle new Cannabis Regulation and Tax Act

Recent Amendments Clarify Employer Right to Discipline for Off-Duty Use and Possession of Cannabis

By: Joshua D. Herman

joshua.herman@mhtlaw.com

Beginning January 1, 2020, it will be lawful for adults in Illinois over the age of 21 to consume and possess cannabis in accordance with the Illinois Cannabis Regulation and Tax Act (“CRTA”). The CRTA limits the amount of cannabis that may be possessed and prohibits its consumption in any “public place.” Meanwhile, the Right to Privacy in the Workplace Act (“RPWA”) prohibits employers from taking adverse employment action against employees for their use of lawful products off-premises, during non-working hours and while not on call.  This has raised questions regarding whether employers may discipline employees for use of cannabis during non-working hours.  A recent amendment to the CRTA has attempted to address this issue.

Under the CRTA as originally enacted, employers could still enforce reasonable zero-tolerance policies, including requiring random drug testing, as well as drug testing when the employer has a good faith belief an employee used, possessed or was under the influence of cannabis at work. However, it did not clearly state whether employers may discipline employees based solely on a positive drug test, without some indication the employee used, possessed or was under the influence of cannabis in the workplace, or otherwise jeopardized workplace safety.

On December 4, 2019, Governor Pritzker signed into law Public Act 101-593 (SB 1557) amending the CRTA to specify that employers may

  • implement reasonable workplace drug policies, including subjecting employees to reasonable drug testing or reasonable and nondiscriminatory random drug testing; and
  • discipline or terminate an employee or withdraw an offer of employment due to a failed drug test.

The requirement that drug policies be “reasonable” and “nondiscriminatory” suggests that testing should be random or required only under certain circumstances (such as pre-employment or following a workplace accident.)  Employers should not take this as license to test any employee suspected of consuming cannabis during non-working hours.  However, as amended, the CRTA now authorizes public employers to prohibit police, fire, and corrections officers, and paramedics from using or possessing cannabis off-duty.

Prior to January 1st, all employers should review and update their policies and employee handbooks to ensure they clearly identify prohibited cannabis-related conduct.

Employers cannot look into salary history

Equal Pay Act prohibits salary history inquiries

Employers Can No Longer Ask About or Look into Salary History

By: Joshua D. Herman

joshua.herman@mhtlaw.com

Effective September 29, 2019, Public Act 101-0177 (the “Act”)  made significant changes to the Illinois Equal Pay Act affecting the equality of pay and the types of inquiries employers may make of employees.

Generally, the Act makes it unlawful for an employer to seek wage or salary history, including benefits or other compensation, from a job applicant or a job applicant’s current or former employer. Employers may not screen job applicants based on their current or prior wages or salary histories (including benefits or other compensation) by requiring that the wage or salary history of an applicant satisfy minimum or maximum criteria.

The Act does not prevent an employer from providing information about the wages, benefits, compensation or salary it offers, or from engaging in discussions with an applicant regarding their expectations with respect to wages, salaries, benefits or other compensation.

Violations of the Act could subject the employer to civil action and damages. Such damages could include:

  • Injunctive relief (requiring the employer to take or refrain from taking certain actions);
  • Special damages up to $10,000;
  • Compensatory damages to the extent they exceed special damages; and
  • Costs and reasonable attorney’s fees.

The Act allows a claim for violation of these provisions to be brought within five years.

Employers should review their hiring processes and procedures to ensure they do not run-afoul of the amended Illinois Equal Pay Act.

Janus vs. AFSCME: Unions Lose Fair Share and Agency Fees

What must public employers do after Janus?

By Joshua Herman

email: joshua.herman@mhtlaw.com

Janus v. AFSCME, a 5-4 decision by the Supreme Court of the United States (“SCOTUS”) issued June 27, 2018, reversed 40 years of law allowing governments and unions to withhold “fair share” deductions from non-union public employees without their consent to subsidize union activity – regardless of whether the employee agreed with the union, its positions, or the activity.

Following Janus, no public body or union can require or deduct an employee’s “fair share” without his free and voluntary consent.  “Fair share,” also referred to as “agency” or “shop” fees, are the costs and expenses unions claim non-union members owe for the benefit of the union’s services and representation.

Fair share deductions were previously lawful pursuant to the Supreme Court’s 1977 decision, Abood v. Detroit Bd. Of Ed. In Abood, fair share deductions (referred to then as “agency fees”) were allowed because they helped to obtain and maintain “labor peace” and avoided “free riders.”  However, Janus held that fair share unnecessarily infringes on First Amendment rights of non-union employees.

Contradicting the “free rider” argument, the plaintiff argued that he was not getting a free ride” on a bus headed somewhere he wanted to go; instead, he was being “shanghaied for an unwanted voyage.” Thus, even assuming the union secures non-union members valuable benefits, Janus opined that this is no different than other private speech that often benefits non-speakers; however, that benefit does not allow the government to require non-speakers pay for such speech.

The true benefits and costs from this decision will not be clear for years to come. As the majority stated “[i]t is hard to estimate how many billions of dollars have been taken from non-members and transferred to public sector unions in violation of the First Amendment.” However, such a “victory” comes at a cost because, as the Janus dissent notes, this decision “undoes bargains reached all over the country.” Twenty states have statutory schemes allowing or mandating fair share and it is a substantive portion of “thousands of current contracts covering millions of workers” requiring affected parties across the country to begin negotiating anew.

Next steps:  What must Public Employers do after Janus?

By its terms, the Court’s decision in Janus took effect immediately, requiring that parties should prepare for the fall out. After Janus, governments, school districts and other public bodies must take immediate action to comply with the new law and continue to meet their obligations under the existing labor law.

Stop Non-consensual Deductions. Public employers should immediately review all employees for whom they make deductions – whether for union dues or fair share – and immediately cease any such deduction that is not supported by the employee’s written consent to such deduction.

Union Dues from Union Employees. Most unions provide forms their members sign to consent to the deduction of union dues and fees. Employers should immediately notify the union of those union members who have not provided written consent and that, if unresolved, the employer may be unable to make any further deduction until a consent is provided.

Notice to Union. Public employers should immediately notify any applicable union that they intend to comply with the decision and, effective immediately, will no longer be deducting any fees from employees who have not provided a signed, written consent to such a deduction.

Duty to Bargain. Despite the Supreme Court’s decision, public employers must still comply with their duty to bargain. If unions reach out to a public employer, the employer should agree to meet and hear their concerns. However, public employers have no obligation to agree to any accommodations or provisions other than those required by law, and the Janus decision imposes no greater obligation.

Memorandum of Understanding. A public employer should not wait until it has a signed memorandum of understanding before proceeding as outlined above. However, offering to enter into such an agreement with the union can help labor relations. We have prepared a draft template that can be used for this purpose. Employers wishing to pursue this course of action should consult legal counsel.

Duty of Fair Representation / Bargaining with Individual Non-union Employees. The Janus decision does not change the union’s duty of fair representation to non-union members (although non-union members may have to begin paying for certain services such as representation in the disciplinary process), nor does it alter the status of the union as all employees’ exclusive bargaining representative. Therefore, public employers are still prohibited from bargaining with non-union employees who are covered under any applicable bargaining agreement.

FOIA following Janus. Some public sector unions have also taken steps to limit bargaining and labor information available to the public, reaching out to public bodies ahead of Janus to request that FOIA requests for information related to union membership, dues, and fair share fees be withheld on the basis that such information is private or personal. Such requests appear to exceed FOIA’s exceptions; consequently, public bodies should continue to exercise their own scrutiny and judgment in responding to FOIA requests that may relate to such information.

Consult counsel: Janus has created new issues in collective bargaining. For further guidance, public bodies should consult their attorney.  

(Janus v. American Federation of State, County, and Municipal Employees, Council 31, Case No. 16-1466, decided June 27, 2018).

Joshua Herman presents small business cyber security seminar

Small Business Cyber Security Seminar Presented By MHT

Joshua Herman, of Miller, Hall & Triggs, presented a Small Business Cyber Security seminar to local business owners. The presentation was held on May 23, 2017, in association with the Illinois Small Business Development Center (the “SBDC”) at Bradley University’s Turner Center for Entrepreneurship.

The presentation was part of an ongoing cyber security certificate series by the SBDC. Herman provided local businesses the legal information they need to operate their business in spite of today’s technological and legal risks and pitfalls. The presentation addressed issues important to small businesses.

State and Federal Cyber Security Laws Impacting Small Businesses

Herman gave practical advice regarding small business cyber security legal obligations. He explained what information small businesses must protect and the repercussions in the event of a cyber security breach. Some of his remarks addressed the following:

  • Illinois Personal Information Protection Act, Right to Privacy in the Workplace Act, Use of Social Security Numbers, Illinois Trade Secrets Act, Illinois Personnel Records Review Act, HIPAA, FMLA, Fair and Accurate Credit Transactions Act, and the Gramm-Leach Bliley Act
  • Legal requirements to protect consumer and employee information and prevent cyber security breaches
  • Legal notice requirements in the event of a cyber security breach
  • Potential liabilities and penalties for failing to protect information or suffering a breach

 Protecting Against Common Cyber Security Vulnerabilities

Herman identified common cyber security vulnerabilities:

  • Third Party Contractors
  • Software and service providers, click-wrap agreements, browse-wrap agreements, Terms of Service Agreements, End-User License Agreements (EULAs)
  • Employees
  • Customers
  • Competition/Corporate Espionage
  • Hackers, etc.

He also provided helpful suggestions to protect against such risks and mitigate potential liability, including:

  • Conducting a needs, risks and vulnerabilities assessment
  • Preventative actions, such as hiring changes, training, and personnel manual changes
  • Technology upgrades and defenses
  • Obtaining cyber liability insurance against cyber security risks
  • Obtaining professional advice and legal counsel

Attendees appreciated Herman’s straightforward advice, giving positive reviews of the experience:

“Very informative and engaging with a difficult topic.” – Small business owner

“Very interesting, gave pertinent examples. He made content that would have normally been dry, very interesting and captivating. Very good.” – Small business owner

Small Business Cyber Security Information Available

Although the seminar is over, business owners with questions on cyber security can still receive a complimentary copy of the seminar materials by calling Joshua Herman at (309) 671-9600 or contacting us here.

Court Orders New Overtime Rules Delayed

Employers Question How To Pay Overtime Now That New Overtime Rules Delayed

By Joshua Herman

email: joshua.herman@mhtlaw.com

For now, implementation of new federal overtime regulations has been delayed. A federal court halted the December 1, 2016, implementation of the Department of Labor’s (“DOL’s”) new regulations doubling the minimum annual salary from $23,660 ($455 weekly) to $47,476 ($913 weekly) in order for an executive, administrative or professional employee to be exempt from overtime requirements. Following the court’s ruling in State of Nevada v. U.S. Dep’t of Labor, No. 16-00731 (E.D. Tex. Nov. 22, 2016), employees exempt from overtime requirements will continue – for now – to be those receiving $23,660 annually ($455 weekly).

How this change impacts Illinois employers is less than clear.

The underlying opinion (available at http://src.bna.com/kgs) is the product of a coalition of states and businesses seeking to overturn the new rule. The coalition argued the DOL overstepped its authority because the Fair Labor Standards Act (“FLSA”) enacted by Congress provides that “any employee employed in a bona fide executive, administrative, or professional capacity… as such terms are defined and delimited from time to time by regulations of the Secretary” shall be exempt from minimum wage and overtime requirements. 29 U.S.C. § 213(a)(1). The FLSA overtime exemptions do not refer to any salary requirement.  In analyzing Congress’ actual language, the court found that Congress intended to exempt employees based on their executive, administrative, or professional (“EAP”) duties, not their salaries.

The court’s preliminary injunction states the new regulations are unlawful because the DOL “exceeds its delegated authority and ignores Congress’ intent by raising the minimum salary level such that it supplants the duties test.” The court explains that “[i]f Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

Despite the fact that the DOL has stated it cannot evaluate overtime exemption based on salary alone, the court found that the new rules would essentially create a de facto salary-only test. The court further held that the new regulations would cause irreparable damage due to the significant expense of compliance if they were allowed to go into effect.

The court held that public interest is best-served by an injunction, stating that:

If the Department lacks the authority to promulgate the Final Rule, then the Final Rule will be rendered invalid and the public will not be harmed by its enforcement. However, if the Final Rule is valid, then an injunction will only delay the regulation’s implementation. Due to the approaching effective date of the Final Rule, the Court’s ability to render a meaningful decision on the merits is in jeopardy. A preliminary injunction preserves the status quo while the Court determines the Department’s authority to make the Final Rule as well as the Final Rule’s validity.

Consequently, the court imposed a nationwide injunction because the DOL’s regulations are applicable to all states, extending the scope of alleged irreparable injury nationwide.

The injunction prevents the DOL from implementing and enforcing the new overtime regulations; however, the impact of this ruling on Illinois employers is less than clear. The injunction is only temporary, pending further action by that court. The court can lift the injunction at any time, or if the court makes it permanent, the injunction can be reversed upon appeal. If lifted or reversed, courts dispute whether the regulations would retroactively apply to employers who delayed implementation.

Should I implement overtime changes now that new overtime rules have been delayed?

Employers have significantly invested in preparing for the new regulations, but they are now faced with the crucial question: “Should I delay implementing changes to comply with the new regulations to avoid significant and possibly unnecessary costs, or should I proceed?” If the regulations eventually become effective, employers who violate them may be fined up to twice the unpaid overtime, civil penalties, and be responsible for employees’ attorneys’ fees.

Employers should consider the risks of further action and proceed on a case by case basis, seeking legal advice where necessary.

Generally, employers who have prepared no-cost solutions (such as limiting employees to 40 hours a week, or converting a salaried employee to hourly compensation at a rate that will not incur additional costs after considering overtime), should implement those solutions. Costly changes (such as raising an employee’s salary to the new threshold) can be delayed while the temporary injunction is in effect; however, employers should immediately begin to track impacted employee hours. If the injunction is lifted, or applied retroactively, these records should allow employers to adequately compensate employees in compliance with the new laws while minimizing potential risks associated with their delay.

Employers that have already implemented costly changes should exercise extreme caution before reverting to earlier practices. Not only will such actions have practical effects on current employee morale, they may also be prohibited based on collective bargaining requirements or other property rights employees may have in their new salaries.

It is uncertain whether the current exempt salary threshold will remain, increase as a compromise, or be completely eradicated. Further, it is unclear whether the incoming Trump administration will continue to push for these regulations, which were created at the Obama administration’s request. Only time will tell. Wise employers will pay close attention to developments on this matter.

For more information or to receive fact-specific advice, contact Joshua Herman and our Labor and Employment team.

Coins stacked in front of clock

Park Districts & Governments Must Know the New Overtime Rules and Other Legal Developments

We invite elected officials, officers, and administrative employees of local governments or park districts, and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. This focused seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA).

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact  Local Governments & Park Districts and as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for local governments and park districts.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

Employee Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules to area business leaders.

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders (pictured above). Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

5:00 p.m.  – 6:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and Hors d’Oeuvres)
4:30 p.m. – 5:00 p.m.:    Registration and Hors d’Oeuvres
5:00 p.m. –  6:30 p.m.: Presentation, Q & A

Tiled sheet of $1 Bills

What Schools Need to Know Now about the New FLSA Overtime Regulations and Other Legal Developments

We invite school administrators, board members and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. The October 26, 2016 lunch-and-learn seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA). Do not wait to learn about these changes at the Illinois Association of School Boards’ conference – it could be too late!

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact Schools as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for schools and educational institutions.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

School Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders. Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

 

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

 

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

12:00 p.m.  – 1:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and lunch)
11:30 a.m. – 12:00 p.m.:    Registration and lunch
12:00 p.m. –  1:30 p.m.: Presentation, Q & A

Using personal cell phone to create employee emails subject to FOIA

Public Employee Emails Subject to FOIA

Even when using private email or devices, employee emails are subject to FOIA and must be included in a reasonably adequate search.

By Joshua Herman

email: joshua.herman@mhtlaw.com

On August 9, 2016, the Illinois Attorney General’s Public Access Counselor (“PAC”) issued Binding Opinion 16-006, which addressed the Freedom of Information Act’s (“FOIA”) application to employee email. The opinion unequivocally held that public employee emails were subject to FOIA, requiring that public bodies conduct a reasonable search for these responsive records, which includes searching public employees’ private emails.

Background of Request for Employee Emails

In January of 2016, CNN submitted a FOIA request to the Chicago Police Department (“CPD”) that sought “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 specific officers during various dates. CPD eventually provided its response on April 19, 2016. CPD’s response consisted of a series of emails with attachments totaling over 500 pages. CPD did not cite any exemptions nor did it provide an explanation with its untimely response.

Request for Review by PAC

CNN filed a Request for Review with the PAC, claiming the CPD’s response did not contain any responsive records despite the fact the CPD claimed that the provided emails were “all of the records found in their search.” CNN asserted that the CPD did not conduct an adequate search because CPD’s response did not contain “a single responsive email.”

Investigation of Whether Requested Employee Emails were Subject to FOIA

The PAC began its investigation by asking the CPD for:

“A detailed description of the processing of [the] FOIA request and the measures taken by CPD to search for responsive records, including a description of the specific recordkeeping systems that were searched, the method of that search, and the specific individuals who were consulted.”

CPD responded that it searched its email system for the 12 named officers for the requested time periods, resulting in 47 e-mails being located. Some of these e-mails were described as being “News Clips” and 12 of the emails were copies of the same two emails.

CNN pointed-out that CPD’s response indicated that the CPD did not search for officers’ emails on any other platform or device, including personal email accounts. CNN argued that:

“Even if the Department does not retain control over personal email or devices, it still has a duty to request copies of such communications that relate to the officer’s public service role and/or in the performance of their government function.”

CNN further questioned how the CPD conducted its search:

“Regardless of the email accounts and devices actually searched, it is entirely unclear to us the search terms and/or parameters the Department actually undertook in conducting its search. Obviously, the search terms used, and the review procedures utilized that would identify highly-relevant documents that might not be found using a search term, are crucial to obtaining CNN’s satisfaction that the Department has engaged in a fulsome search responsive to CNN’s FOIA request.”

The PAC then requested that CPD describe the methods it used to search CPD e-mail accounts, including the particular search terms used.

CPD responded by stating that it searched the email accounts of the 12 named police officers for the search term “Laquan McDonald” during the date ranges requested. CPD also confirmed that it had not conducted a search of any personal e-mail accounts, arguing that e-mails on those accounts are not “public records.” CNN responded that:

”Giving public officials like police officers carte blanche to evade FOIA laws by using personal email for public purposes would eviscerate Illinois FOIA. Moreover, public officials would have an incentive to avoid FOIA by deliberately communicating about sensitive or controversial topics on private email. This flies in the face of the very purpose of public information laws.”

Analysis of whether employee emails subject to FOIA

The PAC began its analysis of whether the private emails of public employees may be subject to FOIA by determining whether they could be “public records.” The PAC addressed the definition of “public records” as it was discussed in City of Champaign v. Madigan, a case that held that some government official text messages are public records. According to the appellate court, to be a “public record,” the communication must

  1. Pertain to the transaction of public business and it must have been
  2. Prepared by,
  3. Prepared for,
  4. Used by,
  5. Received by,
  6. Possessed by, or
  7. Controlled by a public body.

After reviewing the City of Champaign case, the PAC explained that when individual public employees act in their official capacity, they are transacting the public business of the public body. The PAC found that CPD’s interpretation would “undercut the principle that public bodies act through their employees” and that excluding all communications on personal devices or accounts, regardless of whether they pertain to transaction of public business, wrongly focuses solely on the method of communication rather than on the content of the communication.

The CPD had also argued that personal email accounts are not subject FOIA because CPD does “possess or control” those records. The PAC rejected this argument, explaining that an agency always acts through its employees and officials and that if one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the employee or official stores them outside of the agency.

The PAC explained that the CPD’s argument “would yield absurd results by enabling public officials to sidestep FOIA and conceal how they conduct their public duties simply by communicating via personal [electronic] devices.”

CPD also argued that searching personal email accounts would subject employees to unreasonable and unnecessary invasions of personal privacy, an exemption under Section 7(1)(c) of FOIA. However, this exemption expressly states that “disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Consequently, according to the PAC, any emails exchanged by CPD employees pertaining to Laquan McDonald would pertain to public business and accessing them would not be an unwarranted invasion of personal privacy.

Although personal accounts can contain public records, the PAC explained:

“[t]he fact that a personal e-mail account is used to send or receive public records does not transform all communications sent or received on that account, in particular those with no connection to the transaction of public business, into public records that must be disclosed in accordance with FOIA.”

The PAC noted that the CPD did not assert that it asked employees whether they possessed responsive emails, nor did the CPD assert that any employee objected to providing responsive emails. Indeed, the CPD indicated that it took no action to ascertain whether its employee’s had responsive records. The PAC explained that although a public body need not search every record system, it cannot limit its search to only one system if others are likely to contain records responsive to a request.

While FOIA does not specify the manner in which a public body must conduct its search for records, the PAC stated that ordering the CPD officers to produce any responsive records they possessed may have satisfied CPD’s obligation to conduct a reasonable search. In support of this, the PAC cited cases that hold, absent a lack of good faith, a public employee’s search of his personal e-mail and confirmation that he did not locate responsive records satisfies the public body’s obligation to conduct an adequate search.  In light of FOIA, CPD could not simply decline to search for responsive emails on an officer’s private email account.

The PAC also addressed whether CPD’s search term of “Laquan McDonald” was adequate under the circumstances. The emails CPD did produce demonstrated that officers referred to McDonald in multiple ways, including misspellings and the use of only one part of his name. The PAC explained that under these circumstances, the singular search term was “not reasonably calculated to discover all relevant records.”

CPD Ordered to Obtain Employee Emails Subject to FOIA

The PAC found CPD’s response and underlying search to be inadequate under FOIA. The PAC’s binding opinion required the CPD to conduct a search of the personal e-mail accounts of the relevant CPD officers. The PAC suggested that, at a minimum, this requires the CPD to ask the officers whether they possess responsive records, and if so, requiring the officers to provide copies of those records to the CPD.

The PAC further directed CPD to expand its search terms to more reasonably attempt to locate responsive records by including:

  • Alternate name spellings,
  • Names of officers,
  • The incident number,
  • The location of the incident,
  • And a physical description of Laquan McDonald.

Conclusion and next steps

In summary, the PAC’s Binding Opinion held that public bodies must take reasonable steps to locate all public records responsive to a FOIA request. Because employee emails are subject to FOIA to the extent they are public records, regardless of whether they are stored in or sent by a private account or private device. Based on this opinion, in order to comply with FOIA, public bodies should investigate whether employees’ private email, devices and text messages contain responsive records. This means, at a minimum, public bodies must at least ask their employees if they possess responsive records.

This PAC opinion also requires public bodies to craft searches reasonably designed to find relevant documents by using multiple search terms that could be used in or related to relevant records.

Of course, every situation is different based on the facts and circumstances involved. A public body should consider seeking legal advice to ensure it has complied with its legal obligations under FOIA.

Click here for a copy of the complete binding opinion regarding the disclosure of E-Mails from Public Employees’ Personal E-Mail Accounts Pertaining to Transaction of Public Business and the Duty to Conduct a Reasonable Search for Responsive Records.