Posts from June 2016.

For more than 75 years, employers have had broad access to a powerful weapon to counterbalance a union’s ability to engage in an economic strike: the right to permanently replace those economic strikers. On May 31, however, the National Labor Relations Board (NLRB) replaced that powerful weapon with a water gun. In a 2-1 decision, the NLRB held that despite the economic nature of a strike, an employer violated the National Labor Relations Act (NLRA) by permanently replacing strikers because the employer was motivated by “a purpose prohibited by the Act.” American Baptist ...

City of Chicago Approves Paid Sick Time

On June 21, 2016, we posted a blog on the City of Chicago’s proposed ordinance mandating paid sick leave, including details about who it covers and how it could impact business owners.

On Wednesday, June 22nd, the full City council passed the ordinance. Effective July 1, 2017, part time and full time employees in Chicago will accrue 1 hour of sick leave for every 40 hours they work – with a cap of 5 days paid leave per 12 month period.

Employers can utilize their existing paid time off policies if they are more generous than the Chicago ordinance; ...

A Texas federal judge today, June 27, 2016, entered a nationwide injunction barring the U.S. Department of Labor from enforcing its Persuader Rule. HOWEVER, because nothing is certain, SmithAmundsen encourages all employers to speak with its outside counsel on securing Legal Representation Agreements before July, 1st to help combat and further protect its long term interests as explained in our June 24, 2016 Blog Update.

On July 1 (one week from today), the U.S. Department of Labor’s Persuader Rule goes into effect.  The rule requires employers and labor consultants (including attorneys) to publicly report all actions, conduct, or communications that have a direct or indirect objective to persuade employees regarding their rights to collective bargaining, to obtain certain information concerning employee activities, or to persuade employees as to their rights to join or not join a union – which can include mere advice and counsel from attorneys (e.g., supervisor training, handbook ...

On June 17, 2016, the City of Chicago took one step closer into joining the ranks of requiring employers to give paid sick leave to their employees when the City Council’s Committee on Workforce Development and Audit unanimously voted on the Ordinance to do just that. If passed, Chicago will join 26 other cities (such as New York City, NY, Newark, NJ, and Philadelphia, PA), along with Washington, DC and five states (California, Connecticut, Massachusetts, Oregon and Vermont), who have also passed similar mandated paid sick leave for workers.

The Ordinance as currently proposed will ...

A recent consent judgment entered against Grisham Farm Products, in a lawsuit brought by the EEOC, Case No. 6:16-cv-03105 (W.D. Mo.) (June 8, 2016), provides an important reminder to employers that job application questions directed at medical histories are generally off-limits.

The case arose from an EEOC Charge filed by a man who did not even submit a job application. Instead, after seeing the application’s medical history questions, he headed to the EEOC and filed a Charge of Discrimination alleging violations of the Americans with Disabilities Act, as amended (“ADA” ...

Years ago, providing cash to employees that declined benefits was fairly common. Over the past few years, increasing regulations have made that practice mostly obsolete. Then, on June 2, 2016, the Ninth Circuit added FLSA overtime implications to the list of gotchas.

We routinely receive questions from employers contemplating offering cash to employees that decline benefits. Non-exhaustive examples of the concerns are:

  • The option needs to be provided through a cafeteria plan
  • The cash amount may impact “affordability” under the ACA
  • The option cannot enable/require an ...

Under Federal, State and local laws, employers are required to post information regarding laws that protect workers in the workplace, including but not limited to wage laws, discrimination laws, workers’ compensation laws, unemployment law, protected leave laws and safety issues.  In Illinois these include the following:

  • IL Dept. of Labor State of Illinois Your rights Under Illinois Employment Laws
  • IL Workers’ Compensation Notice
  • IL Unemployment Insurance Benefits Notice
  • IL Emergency Care for Choking
  • IL Smoke Free Illinois Act
  • FLSA / Minimum Wage compliance poster
  • Equal ...

On March 24, 2016, we reported on a U.S. Supreme Court’s decision involving litigation by workers at meat-processing facilities who alleged they were entitled to overtime pay and damages because they were not paid for time spent “donning and doffing” protective gear. A critical issue in that case was the plaintiff’s use of statistical data to prove their claim, which the Supreme Court found appropriate, and which ultimately resulted in a $5.8 million judgment.

Shortly after that Supreme Court’s decision, the Tenth Circuit issued a ruling on yet another “donning and ...

Last week, clearly identifying the creation of a circuit court split, the Seventh Circuit (covering IL, IN and WI) held that class action waivers violate the NLRA, even in a non-union setting. Lewis v. Epic Sys. Corp., No. 15-2997 (5/26/2016). By way of background,

  • The Supreme Court previously held that the Federal Arbitration Act (“FAA”) preempted a state court’s judicial rule regarding the unconscionability of class arbitration waivers in consumer contracts – even if the contract was a “contract of adhesion” between parties of significantly disparate ...

Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. 

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