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William F. Dugan

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Employers across the US are requiring employees to return to the brick and mortar workplace as COVID cases drop, and are looking forward to having employees work together again face-to-face. But employers beware: employees have had little in-person interaction with their colleagues over the past two years, and some employees who were onboarded during the pandemic have only met their coworkers virtually. Employees returning in-person may be rusty when it comes to interacting with others in the same physical space, increasing the risk that lines will be crossed into inappropriate or unlawful behavior. What should employers do as employees return to the office to try to keep claims of discrimination and harassment to a minimum?

  1. Update the company’s anti-discrimination and anti-harassment policies

With a focus on health and safety measures such as mask mandates and vaccine policies for the last two years, updating anti-discrimination and anti-harassment policies may not have been front of mind. But employers should review and update these policies now to ensure they comply with any newer laws in the jurisdictions where they have employees-such as Illinois’ Public Act 102-0419, effective January 1, 2022, which specifies that disability discrimination in Illinois now includes discrimination against an individual because of their association with a person with a disability. Updated policies should be distributed to employees, who should be required to acknowledge in writing that they have received and understand them.

  1. Train employees that the company prohibits discrimination and harassment–and requires respect

Employers should also train employees on the company’s anti-discrimination and anti-harassment policies-especially before employees who have been working remotely for months or years return-to increase awareness of what is and is not appropriate workplace behavior. In one study, employees who received sexual harassment training were more likely to indicate that unwanted sexual gestures, touching, and pressure for dates are sexual harassment. Awareness of what is considered unacceptable behavior can help employees think twice before acting, and training showing specific examples of discrimination and harassment-such as actors portraying behavior that could be discrimination or harassment-may help employees understand behavioral boundaries.

Employers should ensure the training covers “to the moment issues” related to discrimination and harassment that may impact the workplace. For example, on March 18, 2021, the US House of Representatives passed the Creating a Respectful and Open World for Natural Hair Act (CROWN Act) which would prohibit discrimination based upon hairstyles in employment (as well as in public accommodations, housing, and other venues). Several states already have similar laws in place, including California, New York, Washington and Delaware. Even if the CROWN Act stalls at the federal level, training employees to respect each other-including each other’s hairstyles-can reduce complaints of discrimination.

Another example is microaggressions in the workplace. A recent Future Forum study indicated that only 3% of Black professional workers (compared with 21% of white professional workers) wanted to return to the office full time post-pandemic, after finding they faced fewer microaggressions from colleagues while working remotely. Aside from diversity and inclusion training (which many employers offer to employees), training all employees on the importance of respect in the workplace can keep all employees feeling welcome, included and valuable-whether they’re working remotely or in-person.

Employers should also ensure the training:

  • Explains the company’s structure for reporting concerns of discrimination or harassment
  • Emphasizes that the company prohibits retaliation for making reports or participating in workplace investigations of alleged harassment or discrimination
  • Describes the steps the company takes when handling complaints, and
  • Reminds employees they are subject to discipline for violation of the company’s policies relating to harassment, discrimination, or retaliation.

Some jurisdictions, including California, Connecticut, Illinois, Maine, New York State and New York City require employers to train employees on workplace harassment. But even if training is not required, employers should train employees before they return to the office-and regularly thereafter-to remind employees what inappropriate behavior looks like, how to report it, and the consequences for not following company policy.Continue Reading Returning Employees to the Workplace? Consider These Tips to Minimize Discrimination and Harassment

As the Omicron wave recedes, a raft of states have announced plans to lift their mask mandates.

In the past few days alone, California, Connecticut, Delaware, Illinois, Massachusetts, Nevada, New Jersey, New York, Oregon, and Rhode Island have announced changes to their face covering rules. And if the number of Omicron cases continues to dwindle…

Illinois employers have been waiting for answers on two important questions regarding the Illinois Biometric Information Privacy Act (BIPA):

  1. Whether the Illinois Workers’ Compensation Act (the Compensation Act) preempts BIPA statutory damages, and
  2. Whether BIPA claims accrue each time a person’s biometric information is scanned or transmitted without informed consent–or just the first time.

The…

Illinois employers have a plethora of new laws to keep up with for 2022. From new Chicago and Cook County patron vaccination orders, to new laws limiting restrictive covenants, to pay data reporting (and more!), new Illinois laws are certain to make for a busy 2022 for Illinois employers. Here are 10 changes employers should know now as we get the ball rolling in 2022.

  1. Chicago and Cook County Vaccination Orders Require Some Employers to Check Vaccination Status of Employees and Require Testing for Unvaccinated Employees

Employers at restaurants, bars, gyms, and other establishments in Chicago and Cook County have already started scrambling to implement patron vaccination requirements–and requirements that they obtain the vaccination status of their employees and require weekly testing for employees who aren’t fully vaccinated. As of January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11  took effect. Under the Orders, covered businesses (including establishments where food and beverages are served, gyms and fitness venues, and entertainment and recreation venues in areas where food and beverages are served) must:

  • Turn away patrons age 5 and over entering the indoor portion of an establishment unless they show a CDC COVID-19 Vaccination Record Card or an official immunization record (or a photo of the same) from the jurisdiction, state, or country where the vaccine was administered, reflecting the person’s name, vaccine brand, the date(s) administered and full vaccination status (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine). There are certain narrow exceptions, such as allowing individuals inside for 10 minutes or less to carry out food or use the bathroom
  • Post signage informing patrons of the vaccination requirement
  • Develop and maintain a written record of the protocol for implementing and enforcing the Orders’ requirements

While covered businesses that are employers do not have to require employees to be vaccinated, they must:

  • determine the vaccination status of each employee by requiring each vaccinated employee to provide acceptable proof of vaccination status (including whether the employee is fully or partially vaccinated), and maintain a record of each employee’s vaccination status; and
  • require COVID-19 testing for employees who are not fully vaccinated. Employees who are not fully vaccinated and who report at least once every 7 days to a workplace where there are others present must be tested for COVID-19 at least once every 7 days and must provide documentation of the most recent COVID-19 test result to their employer no later than the 7thday following the date on which the employee last provided a test result.

Employers with 100 or more employees must also comply with the Occupational Safety and Health Administration Emergency Temporary Standard (OSHA ETS), at least for now. The US Supreme Court heard oral argument on whether to block the ETS at a special January 7 session, but until the Supreme Court issues its ruling, the ETS stands, requiring employers with at least 100 employees to implement and enforce a policy that mandates employees to be fully vaccinated or to submit to weekly COVID-19 testing and mask-wearing. For more on the Chicago and Cook County Orders and the OSHA ETS, see our blog here.Continue Reading Illinois Employers: Ten Top Developments for 2022

It could be a hectic start to 2022 for some Chicago and Cook County employers. On January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11  took effect, mandating proof of full vaccination (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine) for patrons age five and older before they can enjoy certain public establishments.

Though the Orders are largely patron-focused (and employees are likely not “patrons” under the Orders), businesses in Chicago and Cook County will also need to comply with the Orders’ requirements that employers ensure employees are fully vaccinated or produce weekly negative COVID-19 tests.

Here’s what Chicago and Cook County employers need to know now.

Which establishments are covered?

  • Establishments where food or beverages are served, including but not limited to restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms
  • Gyms and fitness venues, including but not limited to gyms, recreation facilities, fitness centers, yoga, pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes
  • Entertainment and recreation venues in areas where food or beverages are served, including but not limited to movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers

What if you own a restaurant that only provides carry out? You won’t need to check the vaccination status of every patron coming in to grab food and go. Individuals entering an establishment for less than 10 minutes for the purpose of ordering and carrying out food, making a delivery, or using the bathroom are exempted. In addition, there are other exemptions, including for individuals who have previously received a medical or religious exemption as long as they provide the establishment proof of the exemption and a COVID-19 test administered by a medical professional within the last 72 hours prior to entering the establishment.Continue Reading Chicago and Cook County Employers: Ring in the New Year with New COVID Requirements for Patrons and Employees

Special thanks to Brian Wydajewski, Narendra Acharya, Aimee Soodan, Tulsi Karamchandani, Scott McMillen, Angelique Poret-Kahn, Ginger Partee, John Foerster and Matthew Gorman.

Our two-part webinar series, co-hosted by the Association of Corporate Counsel – Chicago Chapter, is designed to ensure that Midwest in-house counsel are up to…

We identified and mapped out our most relevant blog posts, articles and video chats to serve as a quick and handy roadmap to recovery and renewal for your company.

Our 2022 Employment & Compensation Resource Navigator provides US multinational companies organized links to Baker McKenzie’s most helpful, relevant thought leadership in one brief document. Arranged…

On September 9, 2021, President Biden announced that he has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to promulgate an emergency temporary standard requiring all US companies with 100 or more employees to ensure that their workers are either vaccinated against COVID-19 or tested  weekly before coming to work. In an…

Special thanks to Jeffrey Martino and Bradford Newman for their contributions to this post.

On July 9, 2021, President Biden issued his Executive Order on Promoting Competition in the American Economy (EO) (Fact Sheet here) signaling support for severe limitation of post-employment noncompete restrictions–a move likely to add fuel to the fire of states passing laws to limit the use of post-employment noncompetes. The EO Fact Sheet states that the banning or limiting of noncompetes will “[m]ake it easier” for employees to “change jobs[.]” Though employers may balk, given Biden’s campaign promises and support for passage of the Protecting the Right to Organize (PRO) Act (see our prior blog here), employers should not be surprised.

The EO encourages the Chair of the Federal Trade Commission (FTC) to exercise the FTC’s statutory rulemaking authority to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” It is uncertain whether that rulemaking will entirely ban or just limit noncompete agreements; focus on restricting noncompetes for all workers or just those considered more vulnerable (such as low wage earners); restrict nonsolicit agreements along with noncompetes; or preempt state law.

The EO also encourages the Attorney General and the Chair of the FTC to consider revising the October 2016 Antitrust Guidance for Human Resource Professionals “to better protect workers from wage collusion” by (as the Fact Sheet explains) strengthening antitrust guidance to prevent the suppression of wages or reduction of benefits through employer collaboration and sharing of wage and benefit information. As we explained in a recent client alert, a push to scrutinize competition issues in labor markets was already in play, tracing back to the 2016 Antitrust Guidance, in which the Department of Justice and FTC alerted companies that “naked” wage-fixing and no-poaching agreements could be prosecuted criminally, and that employers competing to hire or retain the same employees are “competitors” from an antitrust perspective.Continue Reading Goodbye to Employer Protections? Biden Issues Executive Order Encouraging Curtailing of Post-employment Noncompetes