BCLP At Work

BCLP At Work

Other Posts

Main Content

Preparation and Training Critical as Illinois Employers Face New Legal Landscape

Illinois employers must begin preparing now for the host of new legal requirements impacting the workplace beginning in 2020.  With legal changes on topics ranging from hiring practices and pay equity to drug testing and severance agreements, employers should not only review and revise their policies, practices and expectations, but also ensure that their Human Resources and management personnel receive training to ensure compliance.

Amendments to the Illinois Human Rights Act (“IHRA”)

Under new amendments to the IHRA, more employers are now subject to the IHRA, more protections are now provided to employees (and others), sexual harassment training is now a requirement, and employers now have reporting obligations to the Illinois Department of Human Rights (“IDHR”) regarding adverse judgments, administrative rulings, and settlements.  Specifically:

  • Beginning July 1, 2020, rather than applying only to employers with 15 or more employees, the IHRA applies to all employers with one or more employees in Illinois during 20 or more calendar weeks. Newly covered employers should ensure that HR personnel and managers are aware of the areas in which the IHRA is broader than federal anti-discrimination laws, including but not limited to: (1) pregnancy accommodation requirements; (2) prohibition of discrimination based on sexual orientation, gender identity, military status, marital status, and order-of-protection status; and (3) the potential for individual liability of harassers.
  • Beginning January 1, 2020, the scope of protection provided by the IHRA will expand. HR personnel and managers must be aware of the new protections so that they appropriately recognize and respond to concerns. 

Practical Tips to Address Implicit Bias in the Workplace

Over the past half century, employers have made great strides in protecting employees and applicants from conscious bias on the basis of race, gender, age and other protected characteristics.  But what about unconscious – or “implicit” – bias?

What is “Implicit Bias”?

Implicit bias refers to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”  See http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/ .

Each of us has implicit biases, formed based on our experiences and exposures from a variety of sources over time.

What are the Implications of Implicit Bias for the Workplace?

By their nature, implicit biases may cause decision-makers to unconsciously form opinions – and make employment decisions – about applicants and employees in a manner that has a negative effect based on protected characteristics such as race, gender, and age.

Some studies have shown, for example, that when reviewers were given copies of a memorandum with identical errors, but some reviewers were told the writer was African-American and others were told the writer was Caucasian, the average score on a scale from 1 to 5 was nearly a point higher for the Caucasian writer, and the Caucasian writer was described as having “potential” while the African American writer was called “sloppy.”  See http://nextions.com/wp-content/uploads/2017/05/written-in-black-and-white-yellow-paper-series.pdf.

What can Employers do about Implicit Bias?

Unfortunately, implicit biases operate at a subconscious level.  As a result, our implicit biases may run counter to what we consciously believe.  This can make it difficult for decision-makers to realize that their decisions

Impending Changes to the Illinois Human Rights Act: What Every Employer Needs to Know

Responding in part to the #MeToo movement, state and local governments have begun expanding protections for those alleging discrimination and harassment in the workplace.  Last month, the Illinois General Assembly passed a series of amendments to the Illinois Human Rights Act (“the IHRA”) that may have a significant impact on employers if they are signed into law by Governor Bruce Rauner.

  • House Bill 4572: Currently, the IHRA applies to employers who employ 15 or more employees within Illinois for at least 20 weeks per year.  HB 4572 would essentially cover all Illinois employers—any employer who employs one or more employee for at least 20 weeks per year.
  • Senate Bill 20: SB 20 makes several changes to the procedures of the Illinois Department of Human Rights (“IDHR”) and the Human Rights Commission (“the Commission”). Among other things, SB 20 would:
    • Extend the charge-filing period from 180 days after an incident giving rise to a claim to 300 days after the incident;
    • Require the IDHR to notify all parties that the complainant may “opt out” of participating in the IDHR process within 60 days and commence a lawsuit in state court;
    • Change the make-up of the Commission from 13 part-time Commissioners to 7 full-time Commissioners, all of whom must either be licensed to practice law in Illinois or have relevant professional experience;
    • Create a temporary panel of 3 Commissioners to handle the backlog of requests for review; and
    • Require the publication of Commission decisions within 180 days.

New York Passes Anti-Sexual Harassment Measures: What All Employers Must Know

On April 12, 2018, Governor Andrew Cuomo signed the New York state budget into law.  Beyond the dollars and cents associated with a typical budget bill, the legislation included new requirements for private and public employers to address sexual harassment in the workplace. While effective dates for the various measures are staggered over the next year, employers should start preparing now to comply with each provision:

  • Effective immediately: The budget bill amended the New York State Human Rights Law to prohibit harassment against “non-employees” who provide services under a contract, including contractors, vendors, and consultants. If an employer knew or should have known that a protected “non-employee” was sexually harassed at its office or workplace, the employer may be liable if it does not take appropriate action.
  • Effective July 9, 2018: Employers may include nondisclosure/confidentiality clauses in settlement or release agreements dealing with sexual harassment claims only if the complaining party requests such a clause. Additionally, settlement and release agreements must not contain mandatory arbitration clauses for the resolution of harassment claims.
  • Effective October 9, 2018: All employers must have a written anti-sexual harassment prevention policy, and also must provide annual anti-harassment training.  The New York State Department of Labor (NYDOL) and the New York Division of Human Rights are drafting model policies, and employers must base their own policies and trainings on the state-drafted models. Employers must also provide a written copy of the policy to all employees annually.

Employers should act quickly to ensure they comply

Paid Sick Leave to Take Effect in Maryland, Despite Governor’s Veto

Maryland has joined the growing ranks of states across the country mandating employee sick leave. Last year, the General Assembly passed the Healthy Working Families Act, requiring employers to allow employees to earn time off from work.  While Governor Larry Hogan vetoed the bill late last year, the General Assembly reconvened in January and overrode the veto. The Act takes effect on February 11, 2018, and employers should be prepared to implement changes quickly.

Coverage:

The Act applies to full-time, part-time, and temporary employees. However, it does not apply to any employee who works fewer than 12 hours per week, or employees under 18 years old.  Additionally, the Act contains other exceptions for certain categories of workers, including agricultural workers, construction industry employees that are covered by a collective bargaining agreement, and “as needed” shift employees in the healthcare industry.

Whether sick leave is paid or unpaid depends on the size of the employer. Employers with 15 or more employees must provide up 40 hours of paid sick leave per year.  Employers with 14 or fewer employees must provide employees the same amount of unpaid sick leave.

Accrual:

An employee begins accruing leave immediately upon starting work.  Employers must allow employees to accrue one hour of sick leave for every 30 hours worked, and the accrual rate is the same whether leave is paid or unpaid.  Additionally, employers must allow employees to carryover at least 40 hours of earned sick leave from one year to the next.  However, employers

Paving the Way for Unpaid Interns: Trump Administration Relaxes the Standards

Internships are often a great way for students and young people to get their foot in the door and land their first job. But employers must ask themselves: is your unpaid intern actually an intern, or is the “intern” really an employee entitled to wages? Last week, the Department of Labor (“DOL”) aimed to provide clarity and flexibility when it revised its guidance for determining whether an unpaid intern is an “employee” who must be paid under the federal Fair Labor Standards Act (“FLSA”).

Unpaid internships have been the focus of some legal uncertainty over the past several years. The source of that uncertainty may be the FLSA’s simplistic definition of “employee” as “an individual employed by an employer.” The Supreme Court has yet to fully address the difference between unpaid interns and paid employees, but in 1947, the Court recognized that unpaid trainees should not be treated as employees for purposes of the FLSA. In Walling v. Portland Terminal Co., 330 U.S. 148 (1947), the Court relied on several factors in determining that certain railroad trainees were not “employees,” including that the trainees did not displace any regular employees, their work did not expedite the employer’s business, they did not expect to receive any compensation, and they would not necessarily be hired after completing training.

Despite the obvious changes in the workforce since 1947, the DOL and federal courts have continued to rely on the reasoning in Portland Terminal ever since. For example, in 2010, under the Obama

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.