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The Illinois Supreme Court just handed union employers with broad management rights clauses in their collective bargaining agreements (CBA) a win. On March 23, 2023 the Illinois Supreme Court affirmatively answered a certified question (Does Section 301 of the Labor Management Relations Act preempt BIPA claims asserted by bargaining unit employees covered by a collective…

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.

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.)

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Continue Reading 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.

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.…

Continue Reading BIPA Liability in the Billions? Illinois Employers Beware: Claims Accrue with EACH Separate Scan or Transmission

Employers will now have to contend with a five-year statute of limitations for all employee claims under the Illinois Biometric Information Privacy Act (BIPA). On February 2, 2023, in Tims v. Black Horse Carriers, the Illinois Supreme Court held that a five-year statute of limitations applies to all BIPA claims—even those that are tied to the publication of an individual’s data and could presumably be subject to a one-year limitations period “for publication of matter violating the right of privacy.” The Court held that the legislative intent and purpose of BIPA, and the fact that BIPA does not have its own statute of limitations, favor all BIPA claims being subject to the state’s “catchall” five-year limitations period.

What happened

Plaintiff Tims filed a class-action complaint against his former employer, Black Horse, alleging that Black Horse violated section 15(a) of BIPA (providing for the retention and deletion of biometric information), and sections 15(b) and 15(d) of BIPA (providing for the consensual collection and disclosure of biometric identifiers and biometric information). Specifically, Tims alleged that Black Horse required its employees to use a fingerprint authentication time clock, and that Black Horse violated BIPA because it (1) failed to institute, maintain, and adhere to a publicly available biometric information retention and destruction policy required under section 15(a); (2) failed to provide notice and to obtain employees’ consent when collecting their biometrics, in violation of section 15(b); and (3) disclosed or otherwise disseminated employees’ biometric information to third parties without consent in violation of section 15(d).

Black Horse moved to dismiss the complaint as untimely, arguing that it was barred by the one-year statute of limitations in section 13-201 of the Illinois Code of Civil Procedure (Code). Black Horse argued that claims brought under BIPA concern violations of privacy, therefore the one-year limitations period in section 13-201 governing actions for the “publication of matter violating the right of privacy” should apply to such BIPA claims.

The circuit court rejected Black Horse’s argument, and denied the motion to dismiss. In doing so, the court held that violations of all three sections of BIPA were subject to Illinois’ “catchall” five-year limitations period in section 13-205 of the Code.

The appellate court, however, distinguished the applicable statute of limitations under BIPA based on the type of violation alleged. It held that violations of section 15(c) (prohibiting the sale, lease, trade or other profit from biometric information) and 15(d) (prohibiting the disclosure, redisclosure or dissemination of biometric information) were subject to the one-year limitations period in section 13-201 of the Code, while violations of section 15(a) (requiring a written policy with a retention schedule and guidelines for destroying biometric information), 15(b) (requiring notice and the specific purpose and length of collection of biometric information prior to collection), and 15(e) (requiring confidentiality and protective measures in the storage and transmission of biometric information) were subject to the five-year “catchall” limitations period in section 13-205.…

Continue Reading One Limitations Period for All: Illinois Supreme Court Holds All Claims Under BIPA Have a Five-Year Statute of Limitations

This year has started with a bang for Illinois employers. Days into 2023, the legislature passed the Paid Leave for All Workers Act (the “Act”), which would require Illinois employers to 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. Governor Pritzker has announced he looks forward to signing the legislation. If he does, Illinois will join Maine and Nevada and become the third state to require paid leave for employers for “any” reason. If signed, the bill will take effect January 1, 2024, and will apply to all employers with at least one employee working in Illinois.

Here’s what Illinois employers need to know now.

Who is covered–and who is not

Under the Act, an employee who works in Illinois is entitled to earn and use up to a minimum of 40 hours of paid leave (or a pro rata number of hours) during a 12- month period.

The Act looks to the Illinois Wage Payment and Collection Act to define “employer” and “employee” (with some additions and carve-outs), but essentially applies to all employers with at least one employee in Illinois and employees in Illinois with some notable exceptions:

  • Independent contractors under Illinois law
  • Individuals who meet the definition of “employee” under the federal Railroad Unemployment Insurance Act or the Railway Labor Act
  • College or university students who work part time and on a temporary basis for the college at which they are enrolled
  • Individuals who work for an institution of higher learning for less than two consecutive calendar quarters and who do not have an expectation that they will be rehired by the same institution
  • Employees working in the construction industry covered by bona fide collective bargaining agreements (CBAs)
  • Employees covered by CBAs with an employer that provides services nationally and internationally of delivery, pickup and transportation of parcels, documents, and freight.

Also, the Act does not apply to any employer that is covered by a municipal or county ordinance in effect on the effective date of the Act that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Thus, for instance, employers covered by the Chicago Paid Sick Leave Ordinance or Cook County Earned Sick Leave Ordinance won’t be required to provide paid leave under the Act.

When and how paid leave accrues under the Act

Paid leave accrues for employees at the rate of one hour of paid leave for every 40 hours worked, up to a minimum of 40 hours of paid leave per 12-month period (or a greater amount if the employer chooses to provide more than 40 hours of leave).

An employee would begin to earn paid leave on their first day of their employment (or the first day of the 12-month period, see below)–or on the effective date of the Act, whichever is later.

Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) will be deemed to work 40 hours in each workweek for purposes of paid leave accrual unless their regular workweek is less than 40 hours, in which case paid leave accrues on a pro-rata basis based on the employee’s regular workweek.

The “12-month period”

The 12-month period can be any consecutive 12-month period designated by the employer in writing at the time of the employee’s hire.

The employer can change the 12-month period if the employer gives notice to employees in writing prior to the change, and the change does not reduce the eligible accrual rate and paid leave available to the employee. If the employer changes the designated 12-month period, the employer must provide employees with documentation of the balance of their hours worked, paid leave accrued and taken, and their remaining paid leave balance.

Employees can start using paid leave after 90 days of employment (or the Act’s effective date)

Employees can begin using paid leave 90 days after the commencement of their employment or 90 days following the effective date of the Act, whichever is later-but employers can allow employees to use paid leave earlier.

Employees determine how much paid leave they need to use, but employers can set a reasonable minimum increment for the use of paid leave not to exceed 2 hours per day. If an employee’s scheduled workday is less than 2 hours a day, the employee’s scheduled workday will be used to determine the amount of paid leave.…

Continue Reading Illinois on Verge of Requiring Employers to Provide 40 Hours of Paid Leave for “Any Purpose”

Special thanks to Scott McMillen.

Looking Ahead: Exploring the Key Themes and Recommendations for US and Global Employers in 2023

Between maintaining business continuity and keeping your workforce safe, we know there’s been little time to track the rapidly changing employment, compensation and mobility law landscape — in Illinois, across the US, and globally.…

With concerns intensifying about an economic downturn, unfortunately some layoffs or other reductions-in-force may be necessary for employers to weather the storm. 

What’s different now as opposed to early-on in the pandemic? Because of the ups and downs in the market, and phenomena like the “great resignation” and remote work on a scale never seen before…

Studies show that as many as 98% of CEOs are anticipating a global recession in the next 12-18 months, which means that companies have already started focusing on cutting costs and redistributing resources to best position themselves to survive. One of the largest cost centers on any company’s balance sheet is its workforce. As such, layoffs or other reductions-in-force (RIF) have already started to hit, and will likely continue. What’s different this time around? Because of the ups and downs in the market, and phenomena like the “great resignation” and remote work on a scale never seen before, there is a greater likelihood that more employers will find themselves potentially 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.

What to do?  Employers who see a layoff on the horizon — and even those who may have already undertaken layoffs — should revisit the requirements of WARN (and state mini-WARNs) now, and keep the following “WARN-ings” and practice tips in mind as they work with counsel.

What is WARN and what WARN-ings should companies watch out for?

In short, WARN requires employers to give advanced notice to affected employees in the event of a covered mass layoff or plant closing. Under the federal 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.

Which employers are covered?

Under the federal WARN Act, covered employers are employers with:

  • 100 or more employees, excluding part-time employees and those with less than 6 months of service in the last 12 months, or
  • 100 or more employees, including part-time employees, who collectively work more than 4,000 hours per week, excluding overtime.

WARN-ing: State mini-WARN acts often have lower thresholds for covered employers.

When is notice required?

Under WARN, covered employers need to provide notice if a triggering event–a “mass layoff” or “plant closing”–occurs.

Mass layoff: A mass layoff is a reduction in force that (i) does not result from a plant closing, and (ii) results in an employment loss at the single site of employment during any 30-day period for:

  • at least 50-499 covered employees if they represent at least 33% of the total active workforce, or
  • 500 or more covered employees.

Plant closing: A plant closing is the permanent or temporary shutdown of a single place of employment or one or more facilities/operating units resulting in an employment loss during a 30-day period for 50 or more covered employees.

How should employers calculate the time frame to determine when WARN notice is required?

WARN always requires aggregating the employment losses that occur over a 30-day period.

WARN also requires aggregation of the employment losses that occur over a 90-day period that did not, on their own, trigger WARN notice, unless the employer can show that the layoffs were the result of separate and distinct causes and are not an attempt to evade WARN.

WARN-ing: Therefore, employers should look ahead and behind 90 days and add up layoffs that have occurred and any planned layoffs to determine whether separate layoffs may trigger notice requirements under WARN.…

Continue Reading Employer WARN-ing: Layoffs Could Trigger WARN Notice Requirements this Time Around