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Wessels Sherman Labor and Employment Law Blog

Affordable Care Act Update

A few days ago, I thought to myself "You should write an update on the ACA. Everyone always wants to know what is happening with the Affordable Care Act (ACA) because it's interesting and so are you." (I shared this thought with my wife, and she categorically disagreed.)

Highlights of Labor Law Developments So Far This Year

Here are some of the most news-worthy developments in labor law for the first months of 2019.

Biometric Information Privacy Act-Getting Stranger And Stranger

By now, every Employer in the State of Illinois is aware of the Illinois Supreme Court Decision in the Rosenbach v. Six Flaggs Entertainment Corporation and the State Supreme Court interpretation that, under the context of the Illinois Biometric Privacy Act, a Plaintiff does not need to show an "actual injury" to process a claim, merely establishing that the Employer has not complied with the requirements of the Act." Those requirements are of informing Employees in writing of the specific policy for the collection of Biometric data; providing a retention schedule and guidance for permanent deletion of Biometric Information and, most importantly, procuring from the involved Employee a written release authorizing the collection of Biometric Information. If these procedures are not followed, the Employee would have a claim. As well, based on newspaper reports and an article written by this author for the Illinois Client Update, the State Legislature is considering "amending the Biometric Information Privacy Act to remove the private cause of action and make the Act solely enforceable by the Illinois Attorney General. Whether or not that Amendment will pass the Illinois Legislature is subject for debate since the Plaintiff's Lawyer's Bar seems to have a very close rapport with the Democratic Majority in the State House and Senate.

Illinois Employers Should Not Go Overboard With Non-Compete Agreements!

In order to have non-compete agreements which have a chance of being found legally enforceable by an Illinois judge, Illinois employers must carefully figure out the scope of activities to be restricted by their proposed non-compete agreements. Employers relying on the protection of a non-compete agreement naturally want to protect the company's legitimate business interests. The problem is that a one-size-fits-all broad restriction is more comprehensive than a narrow restriction but runs the extremely high risk it will be judged unreasonably broad and therefore legally unenforceable in Illinois.

EEOC Collection Of Employer Pay Data On Target For September

In 2016, under the Obama administration, the EEOC significantly revised its EEO-1 report to require that covered entities - private employers with 100 or more employees, or federal contractors with at least 50 employees - begin to report how much they pay workers, broken down between sex, race and ethnicity. The stated rationale for this change was to enable the EEOC to root out pay gaps presumed to exist between genders, races, and ethnic groups. Employers and eventually, the Trump administration, opposed the measure as being overly burdensome; however, those efforts were eventually unsuccessful in court. Therefore, barring further intervention from the courts it is no longer a question of whether employers must begin to provide payroll data to the federal government's EEOC, but when and how. These questions have now been answered, at least for now. On April 25th, a federal judge in Washington, D.C. ordered that covered employers have until September 30, 2019 to comply with the Equal Employment Opportunity Commission's (EEOC) revised EEO-1 reporting requirements.

Arbitration Agreements and Class Action Litigation

It has now become almost axiomatic that any given alleged violation of the Fair Labor Standards Act - calculation of the overtime rate, rounding procedures, travel time, exempt status, etc., can, and most certainly will, become the basis for a class action lawsuit, since a violation toward the one generally involves a violation toward the many (surely there is a Latin phrase for this).

Indiana Supreme Court Decides Driver Is An Independent Contractor

Applying the very strict "ABC test" defining independent contractor status under Indiana's unemployment insurance law, the Indiana Supreme Court ruled that a company (Q.D.-A.) did not misclassify its driver as an independent contractor. Q.D.-A. was found not to be the employer of the driver in question. Therefore, Q.D.-A. did not owe the Indiana Department of Workforce Development any back unemployment insurance taxes.

EEOC Charges At 12-Year Low

Workers filed 8,000 fewer charges in Fiscal Year 2018 (October 1, 2017 through September 30, 2018) when the EEOC took in 76,418 charges. This total is the lowest since Fiscal 2006 when the agency took in a little under 76,000 charges.

Key Changes to the Illinois Human Rights Act (Which Will Affect Employers)!

The Illinois Department of Human Rights ("IDHR") is the agency that administers the Illinois Human Rights Act ("IHRA"), the state law that outlaws discrimination, harassment and retaliation by most employers in Illinois. The IDHR's federal counterpart is the Equal Employment Opportunity Commission ("EEOC"), which administers the federal laws preventing the same type of violations.

Does Your Company Give Employees Personal Loans? Be Sure To Have Legal Wage Deduction Agreements!!

In Illinois, deductions from paychecks must be done very carefully. Illinois employers need to be aware of the tricky web of laws and regulations which often prevent the employer from simply deducting, unilaterally, from the employee's paycheck-even when the employer is merely paying the Company back for a loan taken out by the employee.

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