SimplyHR | Employment & Labor Blog 

Jennifer Abruzzo, general counsel for the National Labor Relations Board (NLRB), issued a memorandum on May 30, 2023, finding that except in limited special circumstances, non-competition agreements – including the act of merely giving employees non-competition agreements or maintaining existing ones – violate Sections 7 and 8 of the National Labor Relations Act (Act). The memorandum states, “Except in limited circumstances, I believe the proffer, maintenance, and enforcement of such agreements violate Section 8(a)(1) of the Act.”

The Illinois Department of Labor (IDOL) recently adopted new regulations governing several provisions under the Illinois Wage Payment and Collection Act (IWPCA). Among them, the IDOL adopted new regulations that:

1. create a five-factor test for determining when work-related expenses incurred by an employee primarily benefits the employer, such that the employer is required to reimburse the employee for those specific expenditures;
2. clarify when employers may be liable for payment of employee expenses that exceed amounts set forth in the employer’s written expense reimbursement policy;
3. create new recordkeeping requirements relating to employee-incurred expenses;
4. clarify when an employee may file a claim with the IDOL seeking reimbursement of expenses;
5. clarify what constitutes an enforceable wage deduction agreement for deductions occurring over a defined period; and
6. create enhanced penalties for violations of the IWPCA.

The National Labor Relations Board (NLRB) issued a decision on February 21, 2023, that restored pre-Trump era precedent and prohibits employers from offering employees severance agreements that contain broad confidentiality and non-disparagement provisions.

In the case at issue, McLaren Macomb and Local 40, RN Staff Council Office and Professional Employees International Union, AFL-CIO, 372 NLRB No. 58 (2023) (McLaren), the issue was whether Michigan hospital operator McLaren Macomb violated the National Labor Relations Act (NLRA) when it offered severance agreements with broad confidentiality and non-disparagement requirements to 11 employees furloughed because of the COVID-19 pandemic.

The Illinois Supreme Court resolved a critical question in Illinois Biometric Information Privacy Act (BIPA) cases with an answer that threatens to devastate companies and drive settlement values in pending cases through the roof: a separate claim under the statute accrues each time a private entity scans or transmits an individual’s biometric information.

The Illinois legislature recently passed the Paid Leave for All Workers (PLFAW) Act, which will require most Illinois employers to provide their employees working in Illinois with up to 40 hours of paid leave they can take for any reason during a designated 12-month period. Once signed by Governor Pritzker, the PLFAW Act will become effective on January 1, 2024.

We are finally moving past the plethora of pandemic-era employment laws that riddled this blog over the past two years. However, not all will be quiet in 2023, as the breadth of pending U.S. Supreme Court cases and issues agencies are reviewing is wide and has the potential to disrupt several industries. This recap and forecast highlights a few of those topics.

Missouri

2022 was relatively quiet for Missouri employers, except for the buzz around recreational marijuana (forgive our pun). As explained in more detail below, the law does not limit Missouri employers from continuing to drug test and discipline employees who violate anti-use policies, with certain modifications for medicinal users. 2023 also brings a Missouri minimum wage rate hike, but we expect employees may still grumble, as this increase does not pace with inflation.

Greensfelder Officer Scott Cruz authored an article on the “quiet quitting” phenomenon that has been permeating workplaces nationwide in the wake of the COVID-19 pandemic. The article, titled “How to Address and Remedy Quiet Quitting in the Workplace,” was published in the fourth-quarter edition of The Illinois Manufacturer.

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a new poster titled "Know Your Rights: Workplace Discrimination is Illegal" that all covered employers are required to display in the workplace.

Amendments Cover Pregnancy or Adoption-Related Losses, Deaths of Additional Family Members

On June 9, 2022, Illinois Gov. J.B. Pritzker signed into law amendments to the Child Bereavement Leave Act, which take effect January 1, 2023. Among other notable changes, the amendments change the name of the Child Bereavement Leave Act to the Family Bereavement Leave Act, expand the definition of “covered family member,” and expand unpaid bereavement leave time requirements for eligible employees to cover pregnancy loss, failed adoptions, unsuccessful reproductive procedures, and other diagnoses or events impacting fertility and pregnancy.