As predicted, Governor Pritzker signed the “Paid Leave for All Workers Act” into law on Monday, March 13. Accordingly, beginning January 1, 2024, Illinois employers must provide most employees with a minimum of 40 hours of paid leave per year to be used for any reason at all–not just for sick leave.
Navigating Fallout From a Bank Receivership | Practical Tips for US Employers
Together we navigated operational challenges caused by the pandemic, and together we will weather this. What follows is information and practical advice for employers concerned with satisfying their payroll obligations in the near term in the face of their bank falling into receivership.
- Identify the “universe” of employment-related expenses. This will include payroll, benefits, bonus and commission comp, insurance, and severance obligations.
- Understand that liability for unpaid wages can be significant. For example, liability in California includes:
- Back payment of any unpaid wage amounts that employees prove they were legally entitled to.
- Interest of up to 10% of the unpaid wages.
- Penalties for late payment of wages equal to: (i) $100 for the first violation; and (ii) for each subsequent violation, $200 plus 25% of the amount unlawfully withheld. Penalties may apply for each pay period that wages remain unpaid.
- If any employees leave the company after the payday date, the company can be liable for waiting time penalties for late payment of final wages. Waiting time penalties are equal to 1 day’s wages for each day an employee’s final wages are unpaid, up to a maximum penalty of 30 days’ wages.
- Companies may be required to pay employees’ attorney’s fees if the employees prevail in litigation.
- Criminal liability for wage theft if the act is “intentional.” Felony cases are punishable by up to 3 years in prison.
Continue Reading Navigating Fallout From a Bank Receivership | Practical Tips for US Employers
You’ve Heard That The NLRB Restricted The Use of Confidentiality & Non-Disparagement Provisions In Separation Agreements. Here’s What Employers Need To Do About It.
On February 21, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb holding that employers may not offer employees separation or severance agreements that require employees to broadly waive their rights under the National Labor Relations Act (NLRA). In McLaren, a hospital furloughed 11 employees, presenting each with a severance agreement and general release that contained confidentiality and non-disclosure provisions. (See the exact provisions copied below.) The Board majority held that merely “proffering” a severance agreement containing unlawful confidentiality and non-disparagement provisions violated the NLRA because conditioning the receipt of benefits on the “forfeiture of statutory rights plainly has a reasonable tendency to interfere with, restrain, or coerce the exercise of those rights.”
At first blush, this may feel like a sweeping change requiring immediate action. However, it is important to consider this decision with a grain (or two) of salt, breathe and thoughtfully plan your next steps. The key points identified below are designed to help you think through a tailored approach for your organization¾there is not a one-size-fits-all solution. Your approach will depend on the type of workforce you have, your risk tolerance and what you are trying to protect. We are standing by, ready to assist, should you need further guidance.
Key Points
- For most private, nonunion employers, the risk of an unfair labor practice charge is relatively low. While it is absolutely true that the NLRA does indeed apply to most private sector employers, the NLRB and unions tend to focus more on unionized workplaces. (If you have a unionized or partially unionized workforce, the risk is higher but read on.)
BIPA Liability in the Billions? Illinois Employers Beware: Claims Accrue with EACH Separate Scan or Transmission
Illinois employers, do you utilize any workforce monitoring or security measures, such as time clocks, that involve individuals’:
- Fingerprints
- Retina or iris scans
- Scans of hand or face geometry
- Voiceprints
- Biometric information (information based on the above that is used by the company to identify an individual)
If so, read ahead because the Illinois Supreme Court just decided that doing so, without strict compliance with the Illinois Biometric Information Privacy Act (BIPA), could be a multi-billion dollar mistake.
In Cothron v. White Castle System, Inc. (issued February 17, 2023), the Court held that a separate BIPA claim accrues each time a private entity scans or transmits an individual’s biometric identifier or information in violation of section 15(b) or 15(d) of BIPA–not just the first time. Employers subject to BIPA now have no margin of error, because noncompliance with sections 15(b) or 15(d) of BIPA could mean cost-prohibitive–even ruinous–damages for the company.
Paid Leave For USERRA? We Recommend a Comparability Analysis
The Ninth Circuit recently addressed the issue of whether an employer is required to provide pay for employees taking short-term military leave when it offers other types of short-term paid leave. In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit revived a class action claiming discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for the failure to pay short-term military leave.
What is USERRA?
USERRA—a federal law applicable to both private and public employers—provides that a service member employee is entitled to the same “rights and benefits” during a military leave as similarly situated employees on non-military leave. Under USERRA , where the benefits of comparable non-military leaves differ, the employer must give the service member “the most favorable treatment” accorded to any comparable non-military leave.
Continue Reading Paid Leave For USERRA? We Recommend a Comparability Analysis
California Employers Still Can Require Arbitration. For Now.
California’s latest attempt to restrict employment arbitration was foiled by the Ninth Circuit Court of Appeals last Wednesday. On February 15, 2023, a three-judge panel decided that AB 51 (which prohibits employers from “forcing” job applicants or employees to enter into pre-dispute employment arbitration agreements covering certain discrimination and retaliation claims) is preempted by the Federal Arbitration Act (FAA). In doing so, the Ninth Circuit reversed its prior decision in the same case, issued by the same three-judge panel, which partially upheld AB 51 in 2021. While we expect the California Attorney General to challenge the Ninth Circuit’s February 15 decision, California employers can breathe a sigh of relief for now knowing it’s still lawful for most to continue to require arbitration agreements.
Continue Reading California Employers Still Can Require Arbitration. For Now.
4 Tips To Avoid (Or At Least Dull) Headaches When Conducting Layoffs In The US
As we find ourselves firmly in the middle of Q1 of 2023, the avalanche of layoff headlines that started last quarter just keeps coming. Whether you follow the school of thought that the US entered a recession in summer of 2022 (after two consecutive quarters of negative gross domestic product) or not (given a strong labor market and corporate earnings growth), more and more companies are having to address overzealous pandemic hiring and the backlash from soaring company valuations. One comparatively “easy” place for multinational companies to cut costs — US workforces, where employment is generally “at-will” and absent contractual entitlements or triggering statutory notice requirements, layoffs can be carried out relatively quickly. With that said, as always, moving too quickly can create headaches that actually can be avoided — or at least dulled — with a little planning.
Here are four tips to keep in mind when planning layoffs in the US:
- Beware of the WARN(ings)
Larger layoffs have the potential of triggering the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) (and analogous state laws, known as state “mini-WARN acts”) statutes. These statutes impose notice and information obligations, which can be tricky to keep track of, and carry potentially heavy penalties for noncompliance.
Federal WARN requires employers to give advanced notice to affected employees in the event of a covered mass layoff or plant closing. Under the WARN, employers must provide 60 days’ notice of termination to the impacted employees, union representatives (if applicable), and certain government authorities. Under some state mini-WARN acts, 90 days’ notice is required. Click here for more on WARN.
- Tip: WARN should become part of the layoff checklists (again), with teams (re)sensitized to the impact on timing and costs if triggered.
Continue Reading 4 Tips To Avoid (Or At Least Dull) Headaches When Conducting Layoffs In The US
New York City Employers Can Breathe a Little Easier: NYC Pay Transparency Law’s Effective Date is Now November 1, 2022
Navigating the New Rules Regarding Company Profit Sharing Payments In Mexico (Video Chat)
With special thanks to our colleagues in Mexico: Javiera Medina-Reza, Liliana Hernandez-Salgado and Salvador Pasquel-Villegas.
In May, employers in Mexico will encounter new rules regarding compulsory company profit sharing entitlements for employees. This labor reform requires the immediate attention of companies doing business in Mexico.
In this video, Baker McKenzie’s Labor and Employment
Now Available Online – The Global Employer: Focus on Global Immigration and Mobility
The latest version of our signature handbook, The Global Employer: Focus on Global Immigration and Mobility, is now available in an easy-to-search e-version.
Bookmark our site today to review the large scale global immigration, employment, compensation and tax issues related to the movement of employees across 40 jurisdictions* directly from your desktop.
Click here