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October 2016 Archives

State of Labor Unions in America

This will be the introduction to a five-part commentary on the changing face of labor unions in the U.S. It is clear that private sector unions are in a state of serious decline. I believe that some good background material is my 2005 commentary on the precipitous fall of private sector unions, which back eleven years ago had a market share of 7.9%. Today private sector unions represent 6.7% of the USA private sector workforce. That 2005 article was entitled "Are Unions Dead?" Here it is.

The Holidays Are Upon Us

It is never too early to begin planning for the Holiday Season of Calendar 2016 and the inevitable business Holiday Party. There is no doubt whatsoever that the festive season of November and December calls out every year for a business celebration and it is incumbent upon all Employers to be well prepared both for the party and the potential problems that it can create. Do not forget that we are a highly litigious society and individuals are always looking to "stick it to somebody" to enhance their financial standing. It is not too far-fetched to believe that Employers may be liable for injuries caused to innocent third parties under the doctrine of Respondeat Superior and, therefore, any Employer-related activity must be planned and controlled.

New Protections for Domestic Workers Equal New Litigation Opportunities

A new law in Illinois, billed as the Domestic Workers' Bill of Rights Act (the "Act"), will apply several federal and state laws to previously unprotected domestic workers. The law, which will go into effect January 1, 2017, grants nannies, housekeepers, home healthcare workers, and chauffeurs new employment protections and affords new avenues for claims to be made against their employers. Employers of domestic workers are often single households or families who hire help for their children and housecleaning, and who are ill equipped to handle employment litigation compared to the average business.

Why It Is So Important To Train All Managers And Supervisors To Identify Harassment

To protect the Company from becoming a defendant in a devastating lawsuit, all managers and supervisors must be carefully and periodically trained to recognize workplace harassment, discrimination, and retaliation.

Two More Bad Decisions from the National Labor Relations Board Suggest That Double Standards Are Used When It Comes to Employers and Unions

1. Employer Contesting Recently Fired, Gun-Toting Former Employee's Presence at Union Election Site, Must Prove it Actually Affected Outcome of Election.

Best Practices Employers Can Use in Advance of Election Day, to Satisfy Minnesota's Time Off Work to Vote Statute While Also Minimizing Disruptions to Their Operations

Election Day is fast approaching - Tuesday, November 8, 2016. Like most states, Minnesota has a law that protects employees' rights to be absent from work for a sufficient amount of time to be able to vote. Under the Minnesota law, employees have the right to "be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work on the day of the election." Obviously the amount of time each employee may need depends on the employee's commute to/from work and their individual polling places, which may vary considerably. Companies cannot interfere with this right, nor deduct from an employee's pay, vacation or PTO because of the absence. Previously this right was limited to a reasonable time off work the morning of the election, but this was changed to allow for flexibility (for employers and employees alike) for the necessary time off to be taken at differing times throughout Election Day.

FLSA White-Collar Exemption Rule - Effective December 1, 2016

As every Employer is aware, there has been a flurry of activity to forestall the implementation of the United States Department of Labor's new Fair Labor Standards Act White-Collar Exemption Regulations that were scheduled to take effect on Thursday, December 1, 2016. There have been two (2) separate Lawsuits filed in the Texas Federal Courts seeking to block these Regulations. As the date of this article, the Court has withheld Temporary Injunction status, so the chances of the December 1, 2016 date being forestalled because of Court action is fairly nonexistent.

Legislative Update: Illinois Adopts Employee Sick Leave Act

Today, many employees face the dilemma of how to take time off from work to care for an ill family member and still be paid. Before this law, employees had to say they were sick (when they were not) in order to be off work to care for their family and still be paid. Or, the employee would have to rely on a compassionate employer who would allow the employee to use their personal sick days in this situation. Now, it will be mandated by law that paid personal sick days of the employee can be used for the illness of a family member. In August, 2016, Governor Bruce Rauner signed the Employee Sick Leave Act, effective January 1, 2017.

Credit Checks On Employees

There is a very recent Case - Ohle v. The Neiman Marcus Group, 12 L 11206, which is a 2016 Illinois Appellate Court Decision that finds The Neiman Marcus Group violated Illinois State Law by running a credit check on potential Sales Associates and denying Ms. Ohle employment because of credit issues. Specifically, the alleged violation involved a violation of the Employee Credit Privacy Act, 820 ILCS 70/et seq.

IRPWA to Further Limit Employers' Access to Employees' Online Accounts

The Illinois Right to Privacy in the Workplace Act ("IRPWA" or "Act") was recently amended to expand the protections afforded to employees in Illinois. The amendments to the Act take effect January 1, 2017, and the potential for employer liability will increase under the amendments. Consequently, Illinois employers should educate their human resources and managerial personnel and review their company policies and interview practices with experienced employment counsel to best ensure compliance prior to that date.

EEOC Issues New Enforcement Guidance on Workplace Retaliation

For the first time since 1998, the EEOC has published updated guidance on workplace retaliation. Retaliation charges are by far the most common and fastest growing type of claim filed with the EEOC, comprising nearly 45 percent of all charges it now receives. Given the surge in retaliation claims and the additional attention these claims are receiving from the EEOC, employers need to know what activities are protected from retaliation.

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