Under a new law set to take effect September 29, 2019, Illinois employers will be prohibited from, among other things, asking for an employee’s wage history during the hiring process. The law, which amends the Illinois Equal Pay Act, is designed with the intent of avoiding future pay disparity between men and women based on prior wage differences.
Starting on Jan. 1, 2020, Illinois residents and visitors over age 21 are allowed to purchase, possess, use, or transport cannabis for recreational purposes. Illinois’ legalization of recreational cannabis under state law will impact Illinois and Missouri employers because the drug will be more accessible to their employees.
Since June 2010, contractors and subcontractors with contracts that result from federal agency solicitations issued on or after June 21, 2010, have been required to display the Department of Labor (DOL) poster notifying employees of their rights under the National Labor Relations Act (NLRA). On May 16, 2019, the DOL made the following updates to this employer-required poster:
- a new telephone number for the National Labor Relations Board; and
- new contact information for individuals who are deaf or hard of hearing.
In a unanimous decision, the U.S. Supreme Court held that an employee’s failure to exhaust administrative remedies is not a jurisdictional prerequisite to filing a lawsuit, rather it is a procedural requirement that could be waived by the employer’s failure to timely raise the issue.
In Fort Bend County, Texas v. Davis, --- S.Ct. ---- (U.S. June 3, 2019) the plaintiff, Davis, filed a charge of discrimination alleging sex discrimination and retaliation. While that charge was pending, Davis was told to report to work on a Sunday. When Davis refused due to a prior church commitment, her employment was terminated. Intending to amend her earlier charge, Davis submitted an EEOC Intake Questionnaire on which she handwrote “religion” under “Harms or Actions” and checked the boxes for “discharge” and “reasonable accommodation.” However, Davis made no change to her formal charge of discrimination document to allege discrimination on the basis of her religion.
As we explained last week, a federal judge recently ruled that all employers who are required to submit EEO-1 surveys must report 2018 employee pay data by Sept. 30, 2019. In that ruling, the court also ordered the EEOC to collect a second year of pay data and gave the agency a choice between collecting employers’ 2017 data with the 2018 pay data or waiting to collect 2019 pay data next year.
A federal judge reportedly ruled April 25 that all employers who are required to submit EEO-1 surveys on employee demographic data must report employee pay data by Sept. 30, 2019. This includes employers with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government.
On April 1, 2019, the U.S. Department of Labor (DOL) offered a simplified test in a Notice of Proposed Rulemaking to determine whether two entities should be considered joint employers under the Fair Labor Standards Act (FLSA). The FLSA provides that two entities can be jointly and severally responsible for an employee’s wages, and thus the potential FLSA violations of either entity, if they function as joint employers. The notice sets out that the employment relationship should be determined based on a balance of four factors, specifically, whether a potential joint employer actually exercises the power to:
The Department of Labor (DOL) issued its long-awaited proposed overtime rule and new exemption threshold under the Fair Labor Standards Act (FLSA) on March 7, 2019. The regulation, which replaces the controversial rule issued under the Obama administration in 2016, raises the salary threshold from the $23,660 minimum established in 2004 to $35,308, or $679 per week. As such, employees earning under $35,308 a year must be paid overtime for hours worked in excess of 40 each week. Above this salary level, eligibility for overtime varies based on job duties.
The Missouri Supreme Court held on Feb. 26, 2019, that under the Missouri Human Rights Act (MHRA), sex-based stereotypical attitudes can form the basis of a sex discrimination claim when the complaining party is homosexual. While finding sexual orientation is not protected under the MHRA, and standing alone, the characteristic of being lesbian, gay, or bisexual cannot sustain a sex stereotyping claim, the court’s holding does offer greater protections for LGBTQ employees in Missouri.
Companies encouraged to revisit privacy policies in light of projected increase in litigation
The Illinois Supreme Court in January 2019 held that plaintiffs bringing claims under the Illinois Biometric Information Privacy Act (BIPA) are not required to allege that they suffered any actual harm as the result of a violation of the act. Instead, it’s enough to allege that an employer or other entity simply violated BIPA’s notice, consent or disclosure requirements. The court’s opinion in Rosenbach v. Six Flags is expected to result in an increase in class action litigation under BIPA, which regulates how private entities use information based on “biometric identifiers” such as fingerprints and retina scans.