The threshold for white-collar employees to be classifiable as “exempt” rose about 50% to $684 per week (about $35,568 per year) on January 1, 2020. Employers will need to make adjustments to ensure they’re compliant with this updated rule, under the Fair Labor Standards Act, announced on September 24 by the U.S. Department of Labor. By “exempt” I am referring to employees who do not qualify for overtime pay.
The Illinois Freedom to Work Act, which prevents non-governmental employers from requiring that low-wage employees enter into non-compete agreements, has begun to impact case law in the past three years since it was enacted. Employers would be wise to take note.
The act, which defines “low-wage employees” as those earning the greater of $13 per hour, or the federal, state or local minimum wage, pushes back against employers who insert such agreements into new employee packets as a matter of course.
If a customer walked into your retail business or professional office carrying a gun, would you be comfortable with that, or would it feel a little too much like the O.K. Corral? What if they were carrying their weapon openly?
Businesses in Oklahoma (postal abbreviation: OK) have had a new reason to ask themselves those questions since November 1, when a change in state law enabled most Oklahoma residents to carry firearms without a license. That follows a 2012 law that gave licensed firearms carriers the ability to open-carry weapons. Most businesses in the state do not seem to have changed their policies, according to the Oklahoma Retail Merchants Association, which has more than 300 members including both mom-and-pop Main Street businesses and national chains. While some have been considering the question, most continue to welcome gun-toting patrons.
Non-competition agreements (“non-competes”) have long been viewed as viable means for Chicago area business owners to prohibit former employees from taking confidential information and using it to unfairly compete against the business. Non-competes are actually prohibited in some states, but not Illinois.
Illinois allows the use of non-competes with some limitations. Illinois employers are allowed to use non-competes provided they reasonably protect the employer’s legitimate business interests. What this means has been left to the courts, and there has been a steady erosion of the effectiveness of non-competes by limiting the scope of those agreements.
Illinois has passed several laws recently which limit the effectiveness of employee non-competes and which should be of concern to Chicago area business owners:
The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all other places that are open to the general public. When it comes to employment, the ADA provides that employers covered by the statute may not discriminate against “qualified individuals” with a disability with respect to employment matters. The ADA defines such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job. Thus, the most contested issue becomes the question of whether or not the employee has a disability, as that term is defined by the Act.
One type of claimed disability that is increasingly the subject of litigation is obesity. Although courts initially were reluctant to recognize obesity as a qualifying disability for purposes of the ADA protections, courts are increasingly willing to consider obesity as a disability giving plaintiffs status to raise ADA claims.
Legal Marijuana Shouldn’t Mean Dazed and Confused Workers!
Starting on January 1 consumers will be able to buy marijuana for recreational use from licensed sellers. Pot users will no longer need to worry about fines or jail time – but employees will need to pay attention to their employers’ policies about drug screenings and the use of cannabis at work.
Employers should consider how they want to handle the legalization of cannabis in terms of workplace policies, written guidelines and staff training on the many issues that employers will be facing. Employers should take the time to review Section 10-50 of the “Illinois Cannabis Control Act” to see what protections they do and do not have. Among these are:
Back in 2012, facing extreme reluctance from employers, the Equal Opportunity Employment Commission (“EEOC”) published guidance on whether and when to hire workers with criminal backgrounds who had done their time and were, hopefully, ready to be productive citizens and workers.
But employer reluctance to consider hiring ex-cons has waned in the past seven years as the economy has improved, the population has continued to age, and at least in Illinois, the population size has fallen due to people leaving for faster-growing states and fewer immigrants coming into the state. Meantime, more than 27,000 people got out of state prisons and more than 50,000 were released from Cook County Jail in 2018, and the National Employment Law Project estimates that 42 percent of Illinoisans have either criminal records or at least histories of arrest, which can include not only those found not guilty but those never formally charged in the first place.
It’s become somewhat easier for ex-cons (“the formerly incarcerated”) since the state legislature in 2014 prevented employers from asking on applications or early in the process about criminal history, making Illinois one of 23 states to take this step; private companies like Target had already done so. Then in 2016 the state changed licensing laws to make more than 100 occupations more accessible to those with criminal records, including areas like healthcare, accounting and real estate, while expanding the types of convictions that can be sealed—and therefore invisible.
Employers: Be cool with Pot Policies!
With Illinois adopting medical marijuana and looking to legalize recreational marijuana, lots of questions will be arise about what policies employers should adopt. Imagine workers passing a joint (or a bag of spiked gummy bears) around the water cooler or sharing a joint after work. Will employees be allowed to bring their baggie into work? And what about refusing to hire people who test positive for weed. These are murky waters we are wading into and it’s happening across the country. For now, it’s probably wisest for most Illinois employers to take the high road when it comes to disciplining or refusing hire those who smoke marijuana for medicinal purposes.
Illinois employers are allowed to implement a drug-free workplace policy that prohibits employees from possessing or using marijuana in the workplace and/or being impaired during working hours. And those provisions can apply even to those who hold medical marijuana cards under the Compassionate Use of Medical Cannabis Pilot Program Act, signed into law by former Governor Pat Quinn in 2013. However, only those employers that risk losing either a federal contract or federal funding for hiring those who use marijuana are permitted to discipline, or refuse to hire, a person who has a medical marijuana card or fails a pre-employment drug test because they use medical marijuana. The latter provision addresses the fact that marijuana stays in a person’s system up to a month after use.
An arbitration agreement is a contract, in which two or more parties agree to settle a dispute outside of court. Usually, an arbitration agreement is a clause in a larger contract. The arbitration clauses are often subjects to hotly disputed litigation, stemming from the vague verbiage and possible inconsistencies with other parts of the contract. One of such issues – the admissibility of the “Wholly Groundless Exception” – was decided by the Supreme Court in January in the case of Henry Schein, Inc. v. Archer & White Sales, Inc , 586 U.S. __ (Jan. 8, 2019). This is a tricky issue for those in the trucking industry who include arbitration clauses in their contracts with drivers.
What Is A Wholly Groundless Exception?
A “wholly groundless exception” was born out of the “delegation clauses” ordinarily found in arbitration agreements. A delegation clause represents an agreement between parties that an arbitrator, not the court, will determine the threshold issues of enforceability of the arbitration clause and the scope of the arbitration agreement. In other words, it is up to an arbitrator to decide whether, according to the contract or the rule of law, an issue may be decided by arbitration or needs to be determined by a judge. These clauses were held to be valid by the Supreme Court in 2010 in Rent-A-Center, West, Inc. v. Jackson, 561 US 63 (2010). Since then, several circuits decided that this provision must be limited; thus creating a so-called “wholly groundless exception” to the delegation clause. This exception lets parties avoid compelling arbitration in cases where the claims are so obviously not within the scope of the agreement, that it would be a waste of time to go through arbitration before filing a lawsuit.
Employee expense reimbursement is now required by law in Illinois, at least under certain circumstances, making the Land of Lincoln the ninth U.S. jurisdiction to statutorily impose such a requirement. In doing so, Illinois joins the company of other states with similar rules. Employers of all shapes and sizes should get up to speed on the new law, an amendment to the Illinois Wage Payment Collection Act that took effect on January 1, which requires employers to reimburse all “necessary expenditures” directly related to the employer’s services.
The new law (820 ILCS 115/9.5) defines “necessary” as “all reasonable expenditures … required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” This means that the employer must have either “authorized or required” the employee to purchase the product or service and must receive appropriate documentation within 30 days—unless the employer allows for a longer time frame.
Employers should have written expense reimbursement policies that lay out what they pay for and how much, along with what’s requested in terms of documentation; although if an employee cannot produce this documentation, such as a receipt, the employer must accept a “signed statement” from the employee instead. This written policy can set caps for different categories of expenses and the employer does not need to reimburse more than the capped amount, provided the caps amount to more than “de minimis” reimbursement—a term the amendment does not define. In other words, the best guideline one can follow is: be reasonable, based on costs in your area.