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We are exited to invite you to our  two-part Annual Illinois Employer Update on February 2, 2021 from 1:00 – 2:15 pm CST and February 4, 2021 from 3:00 – 4:15 pm CST.

In two 75-minute virtual sessions, we will forecast what is likely to have the most significant impact on Illinois employers in 2021,

Ahead of President-Elect Biden’s inauguration in January, employers have a preview of what is likely to come in the form of stronger union and employee rights. On February 6, 2020, the House of Representatives passed the Protecting the Right to Organize Act of 2019 (commonly known as the “PRO Act”), which contains ambitious changes to the current labor landscape. Changes include expanding the scope of joint employer under the National Labor Relations Act (NLRA), narrowing the definition of “supervisor” under the NLRA, expanding the right to strike to include secondary boycotts among other strikes, and providing additional avenues for workers to participate in collective or class actions. While the Senate has not acted on the bill since it was passed by the House, employers would do well to keep an eye on the revival of the PRO Act or any similar legislation. As an update to our recent blogpost on the PRO Act (here), we highlight two changes below that threaten employers if the PRO Act becomes law.

Banning Class Action Waiver in Arbitration Agreements

The PRO Act amends the NLRA to prohibit any employer attempt to execute or enforce any agreement whereby an employee promises not to pursue any class or collective actions. Notably, this provision in effect would overrule the Supreme Court’s decision in Epic Systems Corporation v. Lewis, 138 S. Ct. 1612 (2018). The Epic Systems Court held that an arbitration agreement waiving the right to proceed collectively under the Fair Labor Standards Act (FLSA) is enforceable, subject to generally applicable contract defenses, such as fraud, unconscionability, or duress. Moreover, the Court held that a class action waiver in an arbitration agreement did not violate employees’ rights under the NLRA. In contrast, the PRO Act’s amendments to the NLRA specifically provide that notwithstanding the Federal Arbitration Act (the federal statute authorizing arbitration agreements), an employer’s attempt to enforce class action waivers in an arbitration agreement would be an unfair labor practice under the NLRA.


Continue Reading PRO Act Likely to Impact Employment Litigation

Non-union employers historically have been little concerned by labor unrest. They will be in for a rude awakening if the Protecting the Right to Organize Act (PRO Act) is signed into law during a Biden administration. The sweeping rewrite of the National Labor Relations Act (NLRA) occasioned by the PRO Act has serious ramifications for union represented workforces as well. The PRO Act would remove the existing ban on secondary strikes, and remove the ban on recognitional strikes lasting over 30 days. The PRO Act would also legalize the intermittent strike and the partial strike. Additionally, the PRO Act bans the permanent replacement of strikers and prohibits terminating employees who engage in strikes. Below, we discuss several ways the passage of the PRO Act would change the labor landscape.

Continue Reading PRO Act Likely to Bring Labor Unrest to Main Street

The federal guidance on whether to classify a worker as an employee or an independent contractor continues to shift, as the U.S. Department of Labor (DOL) issued a new proposed rule favorable for companies. If finalized, the rule may provide businesses with greater latitude to engage independent contractors.

Continue Reading New DOL Proposed Rule Makes It Easier For Companies to Engage Independent Contractors

It is customary to read of employees claiming retaliation against their employer. The U.S. Court of Appeals for the Seventh Circuit’s recent decision in Bator v. District Council 4, Graphic Communications Conference represents the almost unheard of — employees claiming retaliation at the hands of their union instead.

In Bator, union members simply wanted

A CEO who becomes entangled in human resources functions by terminating an employee in a distant locale could expose himself to personal jurisdiction (and personal liability) there, the D.C. Circuit Court of Appeals recently held in Urquhart-Bradley v. Mobley, No 19-7716 (D.C. Cir. June 30, 2020).

The message to executives is clear: a termination conversation could count as sufficient contacts for purposes of personal jurisdiction, even if the employee being terminated is in another state and even if the conversation itself was via telephone and not in person. In Urquhart-Bradley, a panel of the D.C. Circuit Court of Appeals (Srinivasan, Chief Judge, Garland, and Millett, Circuit Judges) joined a list of courts that have refused to apply the “fiduciary shield” doctrine, which provides that a nonresident corporate agent generally is not individually subject to a court’s jurisdiction based on acts undertaken on behalf of the corporation. Where the fiduciary shield does not apply, employers are cautioned to leave termination conversations to HR or in-house counsel to keep executives from being haled into court in another jurisdiction.


Continue Reading Message From Courts To CEOs: Stay In Your Lane