>>Since the beginning of the year, employers across the nation have been addressing a host of new or amended federal, state and/or local laws, and more changes are coming in 2020.

Crain’s Content Studio checked with three labor and employment attorneys to get their takes on some key issues facing Chicago-area employers, and potential strategies for addressing them.

What’s the most common labor or employment law concern you’re hearing from clients?

Jill P. O’Brien: We’re hearing concerns about the necessary updates to recruiting practices and employee handbooks to comply with the expansive changes in state and local employment laws that become effective for the new year. While employee handbooks are an important tool to help promote fairness and consistency in the workplace—which can translate to fewer legal claims and more productive employees—outdated policies actually create significant legal exposure for employers. It’s critical for employers to pay particular attention to several things, including changes in the laws related to time off entitlements for employees and their covered family members; restrictions on the right to use data obtained through background and salary screening practices; new wage and hour reporting and scheduling obligations; and even mandated language changes for published anti-harassment policies.

Susan Lorenc: On a macro level, the most common concern we’re hearing about is recruitment and retention. Especially in the tech space, there’s a lot of competition for top talent. As a result, clients are approaching employee benefits with a lot of creativity and expending resources on key initiatives like diversity and inclusion, leadership training and community outreach—the goal being that with a focus on the growth of the individual, all of the time and effort spent recruiting the individual will not be a lost investment. On a more micro level, clients are frequently struggling with how to handle underperforming employees. Even the best managers have a hard time documenting issues as they arise; without the proper documentation, it can be risky to move straight to termination. So, I spend a lot of time walking through various options to find one that’s workable for each client.

Margo Wolf O’Donnell: Employers want to know how to draft compliant drug

policies. While state laws are rapidly changing in this area, cannabis remains illegal under federal law, creating a strange dichotomy. The Illinois Cannabis Regulation and Tax Act, which goes into effect January 1, will also amend the Illinois Right to Privacy in the Workplace Act to include marijuana among the legal substances that an employee may permissibly use under state law during non-working and non-call hours, and employers may not “discriminate” against employees for such use. As a result, Illinois has made it more difficult for employers to take lawful adverse employment actions due to cannabis usage based on “a good faith belief that the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance.” In light of the new laws legalizing cannabis, how can employers maintain a drug-free workplace?

Wolf O’Donnell: Federal law and most state laws allow employers to impose certain legal restrictions on cannabis use for safety-sensitive positions or based on regulations promulgated by the United States Department of Transportation. Even the new Illinois law allows employers to enforce “reasonable zero tolerance or drug-free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace or on call.” This means that employers with employees in Illinois can prohibit the possession and actual use of cannabis in the workplace in their handbooks, employment agreements and workplace policies.

Lorenc: The bad news is that it’s sometimes difficult to determine impairment because, unlike alcohol, cannabis can stay in a person’s

system for a long time. So, a failed drug test may not indicate actual “impairment.” Illinois’ recreation legalization law defines “impaired” as an employer’s good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position. Rest assured the courts will be asked to address whether an employer’s finding “impairment” was a “good faith belief,” because if a termination based on impairment wasn’t rooted in good faith, the underlying termination could be called into question.

O’Brien: The key is to be sure that policies are carefully tailored to ensure they don’t infringe upon an employee’s privacy right to use cannabis during non-working time. In all other respects, employers are free to maintain their existing “zero tolerance” policies

SPONSORED CONTENT CRAIN’S CONTENT STUDIO

JILL P. O’BRIENPartnerLaner Muchin, Ltd. >>jobrien@lanermuchin.com>>312-467-9800

SUSAN LORENCPartnerThompson Coburn, LLP>>slorenc@thompsoncoburn.com>>312-580-2324

MARGO WOLF O’DONNELLPartner and Co-Chair - Labor & Employment GroupBenesch>>modonnell@beneschlaw.com>>312-212-4982

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LABOR AND EMPLOYMENT LAW:ISSUES AND STRATEGIES FOR EMPLOYERS

A ROUNDTABLE DISCUSSION

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JILL P. O’BRIEN is an equity partner at Laner Muchin, Ltd., where she is the firm’s hiring chair and member of its Executive Committee. Throughout her 30 years of practice, she has represented public and private sector employers in a wide variety of employment and labor relations matters, including collective bargaining negotiations, grievance handling, mediation and arbitration hearings; representation/certification and unfair labor practice hearings before the National Labor Relations Board and the Illinois Labor Relations Board; and discrimination and harassment claims filed in various state, federal and local administrative agencies. In 2018 and 2019, Illinois Super Lawyer named her one of the state’s top 50 women attorneys.

MARGO WOLF O’DONNELL is a partner at Benesch, and co-chairs its Labor and Employment Group. She has more than 25 years of experience litigating and counseling clients on complex employment-related issues, including individual and group discharges, releases, confidentiality agreements, noncompete agreements and internal investigations. She has been recognized as one of the Best Lawyers in America, a “role model” by Chambers, and one of the top ten women employment management attorneys in Illinois by Leading Lawyer. She also leads B-Sharp, a group at her firm that provides power coaching and leadership training to women in-house counsel.

SUSAN LORENC is a partner at Thompson Coburn, LLP, where she practices in its Human Resources Group. She represents clients on a wide variety of litigation matters including discrimination, retaliation, enforcement of covenants not to compete, FMLA, and wage and hour issues. She also counsels clients on hiring, firing, discipline, and implementation of layoffs, as well as prepares employment and severance agreements, employee handbooks and other employment-related policies. She serves as a dedicated extension of a company’s human resources department, offering responsive, practical guidance shaped by an organization’s ultimate goals—not the other way around. Earlier this year, she was named a 2019 Illinois Super Lawyer.

ABOUT THE PANELISTSrelated to use, possession, sale or impairment during working time and breaks. Many employers also plan to modify or eliminate the practice of conducting pre-employment and random drug testing for cannabis, given that the test results may reveal lawful use and not actual impairment of an employee during working time. If an employee is asked to submit to a drug test based on an employer’s good faith belief that they’re impaired by or under the influence of cannabis, the employee must have a right to contest the employer’s facts relied on to support that belief. Therefore, employers should begin training supervisors now on how to detect and document objective facts of possible impairment.

How has the #MeToo movement changed what employers need to do to keep their workplace free of litigation?

Lorenc: We aren’t seeing the huge uptick in sexual harassment litigation in the commercial sector like we did in the entertainment world,

which is not to say it’s not still coming. I’m a proponent of regular training for all managers, including those recently promoted who may not yet appreciate that their actions can create liability for the company. We also need to ensure that there’s a well-disseminated complaint mechanism to increase the likelihood that we’ll know about issues early on so we can deal with them quickly and appropriately. And when we do learn of a potential complaint, we need to investigate immediately and take swift action if the complaint is substantiated – no matter who the accused is in the organization.

O’Brien: Beginning in 2020, Illinois employers are legally required to conduct annual training programs to educate both supervisory and non-supervisory employees about their rights and obligations under the laws related to sexual harassment. This is an excellent way to start good habits for the new year while also reminding employees how this topic fits within the company’s overall culture. The Illinois Department of Human Rights will offer a

sample training program that satisfies this requirement, but nothing beats in-person interactive training to ensure that the concepts are heard and understood.

Wolf O’Donnell: Live training is preferable, and should be conducted by a well-respected employment attorney or other third party. The training should cover issues relating to civility, anti-harassment and anti-discrimination policies, and complaint-reporting procedures. Employers protect themselves best by ensuring that all complaints of discrimination, whether written or oral, and even those that are anonymous—via blogs or tweets or through a hotline—are investigated. If possible, an investigation should start with the complainant, then proceed next with interviews of any other individuals who might have knowledge. Investigations should usually end with an interview of the accused. Along the way, it’s critical not to promise confidentiality. You can simply state that you will keep the investigation as confidential as possible, but business needs may require that it be reported to certain individuals.

Jill O’Brien, Partner 515 N. State St, Suite 2800 Chicago, IL 60654-4688(312) 467.9800 | jobrien@lanermuchin.com

Meet Jill O’Brien: Selected in the Top 50 Women Lawyers in the State of IllinoisThroughout her 30 years of practice with Laner Muchin, Jill’s practice has focused on the representation of public and private sector employers in a wide variety of labor relations and employment matters, including collective bargaining negotiations, grievance handling, mediation and arbitration hearings, and discrimination and harassment prevention efforts.

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LABOR AND EMPLOYMENT LAW:ISSUES AND STRATEGIES FOR EMPLOYERS

A ROUNDTABLE DISCUSSION

SPONSORED CONTENT CRAIN’S CONTENT STUDIO

How can employers comply with the salary law ban in Illinois; are there any exceptions to the law?

Lorenc: Employers must avoid asking applicants what they made in their prior roles. However, asking an applicant for a requested salary—for example, “what are you looking for by way of compensation?”—would not be a violation of the new law, as long as the company doesn’t follow that up with a question about whether the requested salary was commensurate with their current compensation.

O’Brien: By now, clients have revised their employment applications and on-line hiring forms to delete any questions that may cause an employee to reveal information about their current or past salary or benefits received from other employers. We’ve trained our clients’ supervisory staffs who are involved in the interview process to recognize the distinction between asking a candidate about their salary expectations—which is lawful—and avoiding questions that may cause an employee to feel the need to reveal their current or past salary history. The salary history ban amendment to the Illinois Equal Pay Act does not apply to circumstances where an existing employee is a candidate for an internal transfer or promotion within the same organization. And the salary history ban does not apply to circumstances where the salary history is a matter of public record or available through a Freedom of Information Act request.

How should employers handle requests for short-term or long-term leave for employees who don’t qualify for leave under the Family Medical Leave Act?

Wolf O’Donnell: An employer has the duty to engage in the interactive process once they have reason to know of a disability, and a leave request can trigger that duty. The timing and length of the leave plays a large role in whether an employer needs to accommodate it, as well as the potential for other accommodations being equally effective. Employers often run into issues when their policies dictate restrictions on leave that don’t comply with current and applicable laws. For example, requiring employees to show that they are 100 percent healed or that they must provide a release without restrictions before returning to work can violate the ADA if the employee could perform the essential functions of the job with reasonable accommodations. Additionally, in some states, including Illinois, employers are not required to accommodate

long-term leaves, and employers are not required to allow an employee to be on leave indefinitely.

Lorenc: Even if an employee does not qualify for leave under the FMLA, employers still need to be mindful of leave as a possible accommodation under the Americans with Disabilities Act and the Illinois Human Rights Act. The latter was made even more relevant by the 2018 amendments, which made the law applicable to any employer with at least one employee. So, if an employee who does not qualify for FMLA has a disability as defined by the law, an employer would be wise to engage in the interactive process to determine whether they accommodate the leave. That said, employers are also within their right to seek medical certification for the requested leave, including the likely duration of the leave, as part of the interactive process.

O’Brien: Many companies elect to treat all employees the same, regardless of FMLA eligibility, when responding to requests for unpaid time off and insurance continuation rights due to a documented medical condition of the employee or a covered family member. The logic is that the ADA and pregnancy discrimination laws require employers to grant reasonable periods of leave and/or flexible work schedules as a form of reasonable accommodation anyway. However, at the expiration of an approved leave, employers are required to reinstate an employee who is FMLA eligible, whereas non-FMLA eligible employees need only be reinstated when their prior position remains open in many—but not all—cases. Those issues are best addressed on a case-by-case basis.

How can an employer reduce implicit bias in the workplace?

Wolf O’Donnell: Employers first need to recognize that implicit bias can permeate every encounter in the workplace. It can be an issue at every stage of the employment life cycle, but hiring and performance reviews are the most likely points where it can be problematic. Many employers use implicit bias training and policies and procedures to reduce bias in the workplace. Employers should pay careful attention to assignments and carefully monitor the progress of diverse employees. Performance reviews should be updated and tied closely to job duties and actual performance, rather than opinions regarding a particular individual’s personality or characteristics. Interview questions should be reviewed for bias and those reviewing resumes should be trained

on how to screen individuals properly.

What’s changing in Illinois regarding separation and confidentiality agreements?

Lorenc: Effective January 1, the Illinois Workplace Transparency Act provides that an employer cannot use language that would completely prohibit employees from making truthful statement regarding unlawful employment practices. Instead, a confidentiality clause will only be enforceable if the clause mutually benefits both parties; the employer has notified the employee, prospective employee, or former employee, in writing, of his or her right to have an attorney or representative review the agreement prior to execution; there’s a valid, bargained-for consideration in exchange for the confidentiality; the settlement or termination agreement doesn’t waive any claims of unlawful employment practices that have not yet accrued; the employee received the written agreement with at least 21 days to consider whether to sign it; and the employee was given at least seven calendar days after signing the agreement to revoke it, or expressly waived the right to do so. It’s important to note that the restrictions don’t apply to terms of collective bargaining agreement and, to the extent a conflict exists, the terms in the collective bargaining agreement govern. Also, the restrictions don’t prevent an employer from requiring employees in

certain situations to maintain confidentiality as to allegations made by others.

How can an employer ensure enforceability of a noncompete or nonsolicit?

Wolf O’Donnell: An employer must identify the legitimate business interest that prompts the need for such an agreement, and the restrictions that should be in place to prevent the misappropriation and competition that could undermine their business. With precise drafting, employees will be more compliant with these types of agreements, and more specific restrictions are more likely to be enforced by courts. Because continued employment of less than two years might not be enough consideration to support a noncompete or nonsolicit agreement in Illinois, employers here need to think about what consideration they can provide at the commencement of employment.

Lorenc: Employers should invest some time and money into personalizing their restrictive covenants for individual roles. There’s no more “one size fits all.” Illinois courts are increasingly scrutinizing non-competes in particular, so testimony that the receptionist signs the same non-compete as the C-suite could be problematic. Moreover, in light of the 2013 Fifield decision, employers need to ensure that there’s sufficient consideration for any noncompete and not just assume that an offer

of employment will suffice—especially if that employee quits or gets fired within two years of signature.

What impact will next year’s extra day of work for leap year have on employees who are paid an amount computed on an annualized basis?

O’Brien: Employers who pay their employees in weekly or bi-weekly intervals may experience 53 or 27 pay periods during leap year 2020 instead of the normal 52 or 26. Some employers will pay the year’s final paycheck on top of the employee’s regular salary—resulting in about a 4 percent raise during the 366-day leap year. Others will simply redistribute the annualized salary among the 53 or 27 paychecks so that the employee’s total earnings for the year remain the same. Employee benefits contribution amounts and payroll deductions that are computed on an annualized basis also will need to be redistributed to account for the additional pay period. It’s important for employers to communicate with employees in advance about how this issue will be handled. Otherwise, employees may feel their annualized salary level was cut due to the slightly smaller paychecks they receive throughout the year. For employees paid on an hourly basis, the 366th day will not make a difference because they’re paid for each hour they work, regardless of the number of paychecks they receive in a given year.

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