Airdo Werwas has released an updated, comprehensive reference guide for employers. The Employment Law Manual 2018 includes a discussion of recent judicial and legislative developments, information regarding the major federal employment law statutes, practical management considerations, and sample personnel policies, performance evaluations, and other personnel-related forms.
TABLE OF CONTENTS
RECENT JUDICIAL AND LEGISLATIVE DEVELOPMENTS IN EMPLOYMENT LAW
Major United States Supreme Court Employment Law Decisions During 2017 11-14
Federal Arbitration Act Preempts State Law Disfavoring Arbitration Agreements 11
EEOC Subpoena Standard of Review 11
Scope of ERISA’s “Church Plan” Exemption 12
Prior NLRB Decisions May Be Open for Challenge 12
Wage Claims Retain Priority in Bankruptcy Court Settlement Proceedings 13
Sovereign Immunity of an Indian Tribe as Applied to Tribal Employees 14
Pending U.S. Supreme Court Decisions 14
Seventh Circuit Employment Law Decisions During 2017 15-18
Sexual Orientation Discrimination Under Title VII 15
Leaves Of Absence As An ADA Reasonable Accommodation 16
Disability Discrimination Claims – Proof Of Regular Attendance Required 17
Scope of Employers’ Tort Liability – Negligent Hiring 17
Sexual Harassment and Retaliation Lawsuit Not Subject to Arbitration Agreement 17
Americans with Disabilities Act 17
EEOC May Continue to Enforce its Subpoenas Despite Issuing Right-to-Sue Letter 18
Gender Discrimination 18
Major Employment Law Decisions During 2017 In Other Circuits 18-26
Maine Overtime Laws Liberally Construed in Favor of Employees 18
Three-Prong Burden Shifting Test for Discrimination in Massachusetts 19
Puerto Rico’s New Labor Transformation and Flexibility Act of 2017 19
Termination over Facebook Attack Violates NLRA 20
Sexual Orientation Discrimination Under Title VII (Second Circuit) 20
Notice of Termination, Alone, Constitutes Adverse Employment Action 20
Town’s Ordinance Regulating Roadside Employment Solicitation Unconstitutional 20
Attorney Afforded Retaliation Protection for Refusal to Engage in Unethical Conduct 21
Forum-Selection Clause in Employment Contract Upheld 21
Employee’s Release Agreement Construed Narrowly – Does Not Include FLMA Claims 21
No Retaliation Based on Political Speech 22
“Positive Work Environment” Policy Does Not Violate the NLRA 22
Employment Agreement’s Class-Action Waiver Upheld 23
“Cat’s Paw” Applies to Employment Discrimination Matters 23
Sexual Harassment: Harassing Manager had No Authority to Hire or Fire 23
Corporation’s Actual Practices Trumped by its Written Policy 24
Worker’s Right to Picket Protected Despite Alleged Racist Comments Made 24
Beauty School Students are Not Employees 24
Scope of Dodd-Frank Act’s “Whistleblower” Protection is Broad 25
Employers Not Required to Turn Over Employee Tips if Minimum Wage is Otherwise Met 25
Dismissal Reversed in Case Alleging Race, Gender, or Disability Discrimination 25
Inadequate Pregnancy Accommodations Result in Constructive Discharge 26
Sexual Orientation Discrimination Under Title VII (Eleventh Circuit) 26
Employer Policies and National Labor Relations Act 27
Major Illinois State Employment Law Decisions During 2017 27
Cognizable claims under the Illinois Human Rights Act and its intersection with the Illinois Tort Immunity Act 27
Status of Transgender Legal Issues 28-30
Title VII Cases 29
Title IX Cases 29
Amendments to Illinois Vital Records Act-Transgender Persons and Changes to Their Birth Certificates 30
Other Recent Legislative Developments in Employment Law 30-33
Abusive Conduct in the Workplace 30
Salary History Inquiry Laws 31
Medical Marijuana Update 32
Ban the Box Laws 32
Sick Leave Law Updates 32
Sexual Harassment - New Requirements for Local Governments 32
Illinois Human Rights Act - Religious Dress and Grooming 33
EMPLOYMENT LAW STATUTES
I. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 35-65
Who is an Employer 35
Who is an Employee 35
The Equal Employment Opportunity Commission & Title VII 36
EEO Reporting Requirements/EEOC Notice 38
Who May Sue Under Title VII 38
Damages 38
Prohibited Conduct Under Title VII 39
Hostile Work Environment/Harassment 42
Sexual Harassment 44
Quid Pro Quo Harassment 44
Hostile Work Environment 44
Employer Liability for Sexual Harassment 45
Warning Signs of Sexual Harassment 46
Appropriate Ways for Supervisors to Respond to Sexual Harassment 46
How to Develop a Successful Sexual Harassment Policy 46
Affirmative Defenses 47
Sex Discrimination and the Pregnancy Discrimination Act 50
Maternity Leave 51
Paternity Leave 51
Marital Status 52
Abortion 52
Religious Discrimination 52
Definition of “Religion” 52
Reasonable Accommodations for Sincerely Held Religious Beliefs 53
Undue Hardships 55
Title VII/Section 1981 Retaliation 55-57
Associational Retaliation Examples of Retaliation Under Title VII and the Civil Rights Act 57
Examples of Unlawful Conduct Under Title VII 59
Religious Discrimination 59
Race/Color Discrimination 60
National Origin Discrimination 61
Sex Discrimination 61
Title VII Exemptions for Religious Organizations 61-62
The Ministerial Exception 63-65
II. CIVIL RIGHTS ACT OF 1991 65-67
Scope of the Civil Rights Act of 1991 66
Differences From Title VII 66
Damages 66
III. THE AMERICANS WITH DISABILITIES ACT 67-77
Retaliation Associational Discrimination 67
Who Monitors Enforcement of the ADA and ADAAA 67
To Whom Does the ADA Apply 68
What Does the ADA Require of Employers 68
What is a Disability 68
Who is a Qualified Individual 70
What is a Reasonable Accommodation 71
What is an Undue Hardship 73
Medical Examinations 74
Pre-Employment Inquiries 75
Last Chance Agreements 76
Damages 76
IV. AGE DISCRIMINATION IN EMPLOYMENT ACT 77-82
Examples of Prohibited Activities 78
Permissible Actions by Employers 78
Constructive Discharge 79
Reverse Discrimination 79
Filing a Claim 80
Reductions in Force 80
WARN Act 80
Illinois WARN Act 80
Older Worker Benefits Protection Act: Severance Agreements and Releases of
Liability 81
Damages 81
V. THE FAMILY AND MEDICAL LEAVE ACT 82-93
Who is an Employer 83
Joint Employers 83
What is a Serious Health Condition 83
Who is Eligible 84
How Can Leave be Taken 85
Calculating the Year for FMLA Purposes 85
Paid or Unpaid Leave 86
Employer Notice Requirements 86
Employee Notice Requirements 86
Husband and Wife Employed by the Same Employer 87
Supporting Documentation 87
Enforcement 87
Recordkeeping Requirements 88
Returning After the Leave Period Expires 88
Health Benefits During the Leave 89
Military-Related FMLA Leave 89
Qualifying Exigency Leave 89
Military Caregiver Leave 90
Special Considerations for Schools 91
Common FMLA Forms 92
VI. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) 92-97
What Employers are Covered Under This Law 92
What Employees are Covered Under This Law 93
What Does the Law Provide 93
What Documentation May an Employer Request From a Covered Employee 94
What Position Must a Covered Employee be Restored to 94
What if the Covered Employee has Become Disabled While in Military Service 95
What Specific Rights and Benefits do Covered Employees Have 96
What Notice Requirements do Employees Have 97
VII. THE FAIR LABOR STANDARDS ACT 97-111
What is the FLSA 98
Liability Under the FLSA 98
Independent Contractors 99
Joint Employers 100
Who is an Exempt Employee 101
Special Rules for Certain Categories of Employees 102
FLSA Minimum Wage Requirements 104
Deductions 105
Hours Worked 106
FLSA Child Labor Requirements 108
FLSA Recordkeeping Requirements 109
The FLSA and The Equal Pay Act 109
State and Local Government Employees 110
Class Actions Under the FLSA 110
Arbitration Clauses 111
VIII. THE NATIONAL LABOR RELATIONS ACT 111-113
The NLRA and the NLRB 111
Who is Covered 111
What Activity is Protected 112
How Does the NLRA Affect My Organization 112
What Employment Policies Are Allowed 112
IX. EQUAL PAY ACT 113-115
Definition of “Wages” 113
Definition of “Employer” 113
Pay Differentials 113
Stating a Claim 114
Defenses 114
Damages 115
Statute a Limitations 115
State Statues 115
X. THE FAIR CREDIT REPORTING ACT 115-117
Who is Protected by the FCRA 115
What is a Consumer Report 116
Key Provisions of the FCRA 116
Investigations Exempt From the FCRA 117
XI. SARBANES-OXLEY ACT OF 2002 117-120
Protection of Whistleblowers 117
Requirements of the Act 118
Arbitration Agreements 118
Filing a Claim 119
Damages 119
Compliance Guidance 120
XII. THE ELECTRONIC COMMUNICATIONS PRIVACY ACT 120-122
Exceptions to Employers’ Interception of Communications 121
Intercepting Live Conversations 121
Penalties and Damages 122
Statute of Limitations 122
State “Wiretap” Statutes 122
Tips for Employers 122
XIII. THE VOLUNTEER PROTECTION ACT 122-125
Definition of “Volunteer” 123
Definition of “Nonprofit Organization” 123
Liability of Volunteers 124
Damages 124
Preemption of State Volunteer Laws 124
Recommendation for Nonprofit Organizations 125
XIV. RETALIATORY DISCHARGE UNDER ILLINOIS COMMON LAW 125
XV. VARIOUS ILLINOIS STATUTES 126-146
The Illinois Religious Freedom and Marriage Fairness Act 126
The Illinois Employee Credit Privacy Act 127
The Illinois Human Rights Act 127
The Victims’ Economic Security and Safety Act 130
Illinois Equal Pay Act 113
Privacy in the Workplace Statutes 135
Personnel Record Review Act 137
Wage Payment and Collection Act 139
Illinois Minimum Wage Law 140
Veterans Preference in Private Employment Act 142
Illinois One Day Rest in Seven Act 143
Illinois Right of Publicity Act 143
Illinois Child Bereavement Leave Act 144
Illinois Pregnancy Accommodation Act 145
Illinois Freedom to Work Act 145
Illinois Sick Leave Laws 145
XVI. ARBITRATION AGREEMENTS 146-150
General Principles 146
The Federal Arbitration Act 146
What Types of Arbitration Agreements are Unenforceable 146
Arbitrator’s Decisions 147
Appealing an Arbitrator’s Decision 148
State Statutes 148
Suggestions for Drafting and Executing Arbitration Agreements 149
XVII. EMPLOYEE HANDBOOKS 150-160
At-Will Employment 151
Handbooks and Implied Contracts 151
Acceptance of the Handbook 155
Disclaimers 156
Modification of an Existing Employee Handbook 157
Drafting an Employee Handbook 158
PRACTICAL EMPLOYMENT CONSIDERATIONS
XVIII. EMPLOYMENT LIABILITY INVESTIGATIONS 162-174
Employer’s Duty to Investigate 163
How Should an Employer Plan an Investigation 164
Conducting an Investigator 166
Concluding an Investigation: The Investigative File and Report 171
XIX. PREVENTATIVE EMPLOYMENT MEASURES 174-184
Job Postings 174
Pre-Employment Screening 175
Hiring 176
Performance Reviews 178
Disciplinary Action 179
Leave of Absence Policies 180
Advancements or Promotions 181
Layoffs and Terminations 181
Severance Agreements 182
References for Former Employees 183
APPENDIX
XX. EMPLOYMENT POLICIES AND FORMS 185-212
IDHR Questionnaire
Employee Handbook Acknowledgement Form 186
Americans With Disabilities Act (ADA) Statement 187
Whistleblower Protection 189
Drugs and Alcohol – Zero Tolerance Policy 190
Equal Employment Opportunity (EEO) Policy 192
Image Consent and Release Form 193
Social Media Policy 194
Sexual Harassment Prevention Policy 195
Retaliation/Reprisal Prohibition-Confidentiality 196
Supervisors’ Responsibilities/Policy Implementation 197
Employments Rights/Complaints Procedures 197
Employee Complaint Form 199
Confidential Investigation Report 202
Employee Performance Review Forms 203