Category: Labor and Employment

Illinois Supreme Court Clarifies use of Paid Sick Leave Following Birth of a Child

Teacher denied right to continue paid maternity leave following intervening summer break.

By:  Katherine L. Swise

katherine.swise@mhtlaw.com

In the case of Dynak v. Board of Education of Wood Dale School District No.7 (2020 IL 125062), the Illinois Supreme Court was asked whether accrued paid sick leave may be used to extend a teacher’s maternity leave into a new school year.  In a decision issued on April 16, 2020, the Court answered this in the negative, holding that a teacher who gave birth to a child prior to the end of the school year was not entitled to use her remaining accrued sick leave when school resumed in the fall.

The Dyank case involved a full-time teacher who gave birth to a child on the second-to-last day of the school year.  She requested and was granted use of accrued paid sick leave for those remaining 1.5 days of school.  When school resumed following the summer break, she made a request for 12 weeks of leave pursuant to the Family Medical Leave Act, and also requested to substitute 28.5 days of accrued paid leave for the first part of her FMLA leave.  The school district granted her request for FMLA leave but denied her request to substitute accrued paid sick leave, unless the teacher was able to demonstrate circumstances that allowed the use of paid sick leave pursuant to Section 24-6 of the Illinois School Code. 

Section 24-6 of the School Code provides for paid sick leave for full-time teachers, and interprets “sick leave” to include “personal illness, quarantine at home, serious illness or death in the immediate family or household, or birth, adoption, or placement for adoption.”  105 ILCS 24-6.  Section 24-6 further provides that a school district may require a doctor’s certification for absence of in excess of 3 days for personal illness or 30 days for birth.  The school district argued that, because the teacher’s request for paid sick leave in this case was more than 30 days (6 weeks) after the birth, she was not entitled to use paid sick leave without a doctor’s certification, or unless another triggering event applied.  The teacher argued that the School Code does not specify that paid sick leave for birth must be continuous or that it must be commenced or used within a certain period following the birth, and thus she was entitled to use her accrued sick leave after the summer break.

The Supreme Court rejected the teacher’s argument that she was entitled to use paid accrued sick leave at any time following the actual birth.  Rather, the Court held that the language of Section 24-6 “strongly suggests that the legislature intended that sick leave for birth must have a temporal connection to the birth.”  If a teacher could use their paid sick leave at any time after the birth, the Court reasoned, it would make no sense to require a doctor’s note for a period in excess of 30 days.  The Court further noted that there is no indication that the legislature intended sick leave for the birth of a child to operate any differently from sick leave for any other triggering event, such as personal illness or a death in the immediate family.  It would be absurd to require school districts to allow a teacher who got sick or had a death in the family over summer break to use accrued paid sick leave for those events once school resumed.  It is clear in those cases that the paid leave must be used at the time those events occur, and not at some later time of the teacher’s choosing.  Similarly, the Court held that paid sick leave for birth must be used at the time of the birth.  Thus, the Court held that the teacher in this case was not entitled to use accrued paid sick leave when school resumed after the summer break because the “triggering event”—in this case, the birth—had occurred more than 10 weeks earlier.

It is important to note that the Court’s holding in this case was limited to the facts of this case.  The Court implied that the outcome would have been different if the teacher was able to provide medical documentation supporting her need for additional sick leave so long after the actual birth.  Thus, there may be circumstances under which an employee would be permitted to use accrued paid sick leave for the birth of a child, even after an intervening summer break.  Additionally, she was granted unpaid leave under FMLA, which can be taken any time within the first year after the birth of a child. 

It is also important to note that there may be an applicable collective bargaining agreement provision that could change the outcome in a particular case.  There was no discussion of whether the teacher in this case was entitled to use her paid leave pursuant to the provisions of a collective bargaining agreement, so it is presumed that there was no applicable contract provision in this case.  However, school districts should take care to review the terms of their own collective bargaining agreement before relying on the outcome of this case to deny a teacher’s request for paid leave after an intervening summer break.  As always, be sure to consult your board attorney if you have any questions about the application of the Court’s holding in this case to your paid sick leave policy.

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.

Residency Requirements for Municipal Employees

By:  Robert B. McCoy

robert.mccoy@mhtlaw.com

In most cases, a municipality can chose whether to mandate that its employees reside within the municipality’s corporate limits.   Special rules, however, apply to police officers, firefighters and appointed officers of a municipality.

Municipalities that have chosen to impose employee residency requirements have sometimes faced constitutional challenges to their policies.  These challenges seldom succeed in the courts.  All that is needed for an employee residency requirement to be constitutional is that the municipality had a “rational basis” for adopting the requirement.  This standard can be easily met.  The Seventh Circuit Court of Appeals (the federal appeals court that sits in Chicago) has noted, for example, that a city’s need to have its employees sometimes available on short notice is a sufficient, rational reason for a residency requirement to make it constitutional.  Gusewelle v. City of Wood River, 374 F.3d 569, 578 (7th Cir. 2004.)

Although municipalities may choose to impose residency requirements on employees, the Municipal Code provides that certain appointed municipal officers must be residents. The default rule is that all appointed officers must be residents of the municipality in which they serve. (65 ILCS 5/3.1-10-6.) However, the Municipal Code exempts from this residency requirement “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge.”  There are no reported court cases giving guidance on this point, but it appears that a city council or village board could not adopt an ordinance imposing a residency requirement on “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge,” where such an ordinance would probably constitute an unlawful restriction on the mayor’s or village president’s authority to appoint officers of his or her choosing to these offices.

Police officers and firemen are considered officers, and per default rule, they must be residents of their municipality.  But, unlike the case for other officers, the Municipal Code expressly provides that a municipality can adopt an ordinance that changes this default rule and not require that its police officers and firemen be residents.  It is our opinion that a municipality could also exclude its police chief or fire chief from any residency requirements.  Note that for municipalities whose police officers of firemen are appointed by a board of police and fire commissioners, residency requirements for police officers or firemen cannot be made more restrictive for any individual during his or her period of service, nor can residency be made a condition of promotion, except for the rank or position of fire or police chief.  (65 ILCS 5/10-2.1-6.)

Who is an officer of a municipality, as opposed to a mere employee, is not always clear.  The Municipal Code lists the following positons, which may be filled by the mayor or village president with the advice and consent of the city council or village board, as being appointive offices:  “(1) a treasurer (if the treasurer is not an elected position in the municipality), (2) a collector, (3) a comptroller, (4) a marshal, (5) an attorney or a corporation counsel, (6) one or more purchasing agents and deputies, (7) the number of auxiliary police officers determined necessary by the corporate authorities, (8) police matrons, (9) a commissioner of public works, (10) a budget director or a budget officer, and (11) other officers necessary to carry into effect the powers conferred upon municipalities.”  (65 ILCS 5/3.1-30-5.)  This last category is vague, but the courts have provided some guidance in its interpretation.  In determining whether a person is an employee or an officer, the courts look at whether appointment is for a certain term, whether an oath of office is required, and whether the person has the supervisory and discretion to act on behalf of the municipality.   Rinchich v. Village of Bridgeview, 235 Ill. App. 3d 614, 628, 601 N.E.2d 1202, 1211 (1st Dist. 1992).

If a position is held by an appointed officer, as opposed to a hired employee, and if there is no statutory exception that allows or requires the officer to be a non-resident, the Municipal Code requires that the person to be a resident.  For example, an appointed city administrator, who exercises a large amount of discretion in the performance of his or her duties, would likely be an officer, and without an applicable exception to the default rule that appointed officers must be residents, the city administrator would be required to be a city resident.

In summary:

  1. A municipality can choose whether to require residency of its “ordinary” employees.
  2. A municipality can choose whether to require residency of its police officers and firemen.  However, if there is no ordinance providing otherwise, police officers and firemen must be residents of the municipality.
  3. A city council or village board likely lacks the authority to require residency of the municipality’s attorney, engineer, or any officer required to have technical training or knowledge. Imposing a residency requirement improperly limits the mayor’s or village president’s power to make appointments to these offices.
  4. Other appointed officers of a municipality may be required by statutes to be residents of the municipality. Consult with your attorney if you have questions whether an appointed officer can reside outside of your municipality’s corporate limits.

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).

Governor Mandates Public Entities Enact Policies Prohibiting Sexual Harassment by January 15, 2018

  On November 16, 2017, Governor Rauner signed into law Public Act 100-0554, which amends the Illinois State Officials and Employees Ethics Act by requiring local governmental entities to adopt, by ordinance or resolution, a policy prohibiting sexual harassment.  5 ILCS 430/70-5.  Although many governmental entities may already have sexual harassment policies in place, the law sets forth new minimum standards for all policies.  According to the new amendments, a policy prohibiting sexual harassment shall include, at a minimum:

  • a prohibition on sexual harassment;
  • details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Department of Human Rights;
  • a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under this Act; and
  • the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

     For purposes of the Illinois State Officials and Employees Ethics Act, “governmental entity” is defined as “a unit of local government (including a community college district) or a school district but not a State agency or a Regional Transit Board.” 5 ILCS 430/1-5.  This would include, but not be limited to municipalities, counties, townships, park districts, school districts, and community college districts.  All governmental entities should review their current sexual harassment policies to ensure that they meet the minimum standards and were properly approved by either resolution or ordinance by the January 15, 2018 deadline. To view the full Act, see Public Act 100-0554

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.