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It’s one of the hottest summers on record across the US and around the world, and things may be heating up for Illinois employers as well–with pending legislation that, if signed into law, would require employers to include pay scales in job postings and to meet new health and safety-related requirements when using temporary employees. Illinois employers need to be aware of other changes, including possible liability under amendments to the Illinois Gender Violence Act, changes to the Chicago and Cook County minimum wage and new obligations for employers to meet Equal Pay Registration Certificate requirements under the Illinois Equal Pay Act of 2003.

In this blog, we “round up” eight important changes to know and two bills Illinois employers should keep on their radar as we start to round down the summer.

Eight to Know

1. Employers can now face liability under amendments to Illinois Gender Violence Act

On July 28, Governor Pritzker signed HB 1363 into law, which amends the Illinois Gender Violence Act (GVA) effective immediately to impose employer liability in certain circumstances where individuals are victims of gender-related violence. Under the GVA, a person who has been the victim of gender-related violence can sue the person who committed the act of violence and seek damages. Now, not only do perpetrators of gender-related violence face liability under the Act–employers can be liable, too.  

What to know

  • Under the new law, employers can be liable for gender-related violence committed in the workplace by an employer or agent of the employer (including independent contractors), but only when the interaction giving rise to the gender-related violence arises out of and in the course of employment with the employer–which is undefined and vague, so we’re hoping for guidance on what this means.
    • Note that “workplace” is defined, and includes the employer’s premises (including any building, real property, and parking area under the control of the employer), and any location used by the employee while performing job duties for the employer, as well as activities occurring off-premises at employer-sponsored events where an employee is not performing the employee’s job duties (think holiday parties).
  • For liability to extend to an employer, the gender-related violence must occur (i) while the employee is directly performing the employee’s job duties and the gender-related violence was the proximate cause of (i.e. substantial factor in causing) the injury, or (ii) while the agent of the employer was directly involved in the performance of the contracted work and the gender-related violence was the proximate cause of the injury. In addition, an employer must also act “in a manner inconsistent with how a reasonable person would act under similar circumstances” to be liable.
  • Notwithstanding the above, in order to be liable, employers must:
    • Fail to supervise, train or monitor the employee who engaged in the gender-related violence–but an employer who provides sexual harassment prevention training pursuant to Section 2-109 of the Illinois Human Rights Act (IHRA) has an affirmative defense that adequate training was provided to the employee; or
    • Fail to investigate complaints or reports directly provided to a supervisor, manager, or owner (or another person designated by the employer) of similar conduct by an employee or the employer’s agent–and fail to take remedial measures in response to the complaints or reports.
  • The statute of limitations for an alleged victim of gender-related violence to sue the employer is four years, or within four years of a victim turning 18 if the victim is a minor at the time the cause of action accrues.
  • The amendments also clarify that the Act does not preclude a victim of gender-related violence from pursuing any other right or cause of action created by statute or common law.

Employers should train HR and managers on the new law, and make sure employees receive appropriate sexual harassment prevention training under Section 2-109 of the IHRA to at least have the affirmative defense available should they face employee claims under the new law.Continue Reading Illinois Employer Midsummer “Roundup”: Eight to Know and Two to Watch

Special thanks to co-presenters Luis C. Carbajo, Adriana Ibarra-Fernandez, Luis Adrián Jiménez Robles, Jose M. Larroque, Ma. Rosario Lombera González, Manuel Padrón-Castillo, Salvador Pasquel-Villegas, Javiera Medina-Reza, and Reynaldo Vizcarra-Mendez.

This year the Mexican government intends to raise an astonishing amount in revenue from large taxpayers and employers (Grandes Contribuyentes) without increasing tax rates or creating new taxes. To increase revenue, the federal government will significantly increase the number of audits and inspections touching on the areas of tax, customs and employment; accordingly, multinationals operating in Mexico need to prepare now for more intensive audits and inspections. 

This special emphasis on inspections and audits will significantly impact the human and financial resources of Mexican subsidiaries of multinationals. 

We are delighted to come together live in Mexico City with our Tax, Employment and Trade & Customs specialists to share experiences and offer comprehensive advice on this tough environment dealing with Mexican authorities. Our team has deep expertise and strong relationships with the authorities in Mexico and thus can share best practices and advice based on years of experience.

Among other topics, we will cover:Continue Reading Join Us! Preparing for the Significant Increase in 2023 Audits and Inspections from the Mexican Government

Special thanks to our summer associate Brianna Miller for her contributions to this post.

In Trinity Services Group, Inc. v. NLRB, No. 20-1014 (June 1, 2021), the US Court of Appeals for the DC Circuit recently rejected the National Labor Relations Board’s (NLRB) attempt to prohibit employers from expressing opinions the NLRB considers baseless. In reversing the NLRB, the Court held that the National Labor Relations Act (the “Act”) only prohibits employer speech containing a threat of reprisal or the promise of benefits, and that expressions which are merely “views, arguments or opinions” are not unlawful.

No threat of reprisal or promise of benefits means the statement–even if not based in fact–is not illegal

The case arose when an employee discovered a mix-up regarding the amount of her accrued paid leave. When she raised the issue with her supervisor, he pinned the blame on the union. The NLRB and the Court both found there was no objective basis for blaming the union rather than the employer for the mix-up.

The Court examined the provisions in Section 8(a)(1) of the NLRA, which proscribes certain speech. Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain or coerce employees” in the rights guaranteed by the Act. The Court also considered the provisions in Section 8(c) which guarantees parties freedom of speech, specifically that “[t]he expression of any views, argument, or opinion…shall not constitute an unfair labor practice.” The Court sought to reconcile the two provisions, and holding that only speech containing a threat of reprisal or promise of benefits is prohibited by the NLRA, while Section 8(c) protects “any” view, argument or opinion. The Court held the statement the NLRB found illegal contained neither a threat of reprisal or the promise of benefit and thus was not illegal. Undeterred by the plain meaning of the word “any,” the NLRB requested the Court to create an exception under Section 8(c) for statements which are “patently false.” The Court rejected that request as contrary to the plain language of the section.Continue Reading NLRB’S Attempt at Fact Checking Rejected

Ordinarily, courts defer to the National Labor Relations Board’s (NLRB) factual findings and its remedial orders given the Board’s broad discretion when fashioning a remedy. However, in the D.C. Circuit’s recent decision in RAV Truck & Trailer Repairs Inc. v. NLRB, 997 F.3d 314 (D.C. Cir. 2021), the Court refused to do so.

Sometimes being too persuasive can have a downside, as Peter Robb, former General Counsel of the NLRB can attest. Robb had convinced the NLRB to find an owner had illegally closed his business and had further persuaded the NLRB to order it reopened. Contrary to common practice, the Court refused to rubber stamp the NLRB’s factual findings or to defer to the remedy, stating that the NLRB’s order “does not purport to explain how restoration is even factually possible.” Instead, the Court gave the NLRB a second chance at finding the necessary evidence in the now closed record.Continue Reading DC Circuit Court Reins in NLRB: No “Rubber Stamp” of NLRB’s Findings and Remedy

A second court of appeals has refused to adopt a National Labor Relations Board (NLRB) decision declaring an employee’s speech violated the National Labor Relations Act.  See Tecnocap, LLC v. NLRB, 2021 U.S. App. LEXIS 18080 (4th Cir., June 17, 2021). Similarly, in a decision issued earlier this month, the D.C. Circuit vacated an NLRB decision, finding instead it was not unlawful for an employer to make a false statement. See Trinity Servs. Grp. v. NLRB, 2021 U.S. App. LEXIS 16314 (D.C. Cir., June 1, 2021) (which we blogged about here). In Tecnocap, the Fourth Circuit deemed the NLRB’s decision out of bounds because in its view the employer’s speech “communicated accurate and lawful information,” and did not constitute unlawful “direct dealing” with its employees.
Continue Reading NLRB Loses Second Recent Speech Decision

Special thanks to presenters Johan Botes (Johannesburg), Joanna Matthews-Taylor (Dubai) and Sertac Kokenek (Istanbul – Esin Attorney Partnership).

Our four-part Global Guided Tour for US Multinational Employers webinar series is your passport to ensure that your organization is up to speed on the key labor and employment issues affecting business operations in Europe, the…

On February 4, 2021, House Democrats reintroduced the Protecting the Right to Organize Act of 2019 (PRO Act). The sweeping labor legislation, which would return many provisions of current labor laws to their pre-1947 status, would create new claims and impose punitive penalties and strengthen a number of union and employee rights. The legislation has…

President Biden did not waste any time after taking office on January 20, 2021. Shortly after the Presidential Oath of Office was administered, Biden signed 17 executive actions, which either impact the workplace or provide insight into what may be forthcoming under the new administration for employers.

A Flurry of Executive Orders on Day One

Biden issued a memorandum to agencies to freeze all last-minute regulations put in motion by the prior administration as President Trump was leaving office. Notably, these regulatory “freeze memos” are not uncommon for incoming administrations to issue. This pause on the prior administration’s last-minute regulations will give the Biden administration the opportunity to evaluate the so-called “midnight regulations” and determine if they will become final, be amended, or rescinded altogether.

He also issued an Executive Order reinforcing that Title VII prohibits the federal government from discriminating on the basis of sexual orientation or gender identity. The Order references the recent Supreme Court case of Bostock v. Clayton County (blogged about here). Specifically, the Order states “[i]t is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The Order notes that laws that prohibit sex discrimination (specifically referencing Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act) also prohibit discrimination on the basis of gender identity or sexual orientation.Continue Reading Biden and the Workplace: Early Days, Major Changes

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