Labor & Employment

The newsletter of the ISBA’s Section on Labor & Employment Law

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2023 Articles

BIPA Litigation Update: Cothron’s Impact and Employer BIPA Defense Affirmed By Susan Lorenc, Drew Moore, James Shreve, & Ryan Gehbauer July 2023 The Illinois Supreme Court’s most recent rulings have cut both ways while further clarifying the contours of litigating Illinois Biometric Information Privacy Act claims.
Congress Delivers New Protections for Pregnant and Nursing Mothers By Becky L. Kalas & Paige Lyle February 2023 As 2022 came to a close, President Biden signed the 2023 omnibus government funding bill, which include two provisions that expand protections for pregnant and nursing employees.
Contractor Agreements Subject to Federal/State Law Prohibitions on Confidentiality and Nondisparagement By Tracey I. Levy February 2023 In yet another example of laws blurring the distinction between employees and independent contractors, organizations need to beware that the prohibitions on confidentiality and nondisparagement agreements embodied in the federal Speak Out Act and various state laws often are equally applicable to independent contractor agreements.
Dueling Challenges to NLRB’s New Joint Employer Rule Succeed in Extending Effective Date of Rule By Emily Harbison & Heather Raun December 2023 In October 2023, the National Labor Relations Board issued a final rule that dramatically lowered the standard for companies to qualify as joint employers.
EEOC Issues Draft Regulations on the Pregnant Workers Fairness Act – Key Takeaways for Employers By Angela Vogel, Meg A. Burnham, & Arielle Spinner September 2023 The U.S. Equal Employment Opportunity Commission recently unveiled draft regulations and guidance on the new federal Pregnant Workers Fairness Act.
‘Every One of Us Can Make a Difference!’ By Hon. Michael S. Jordan December 2023 Individually and jointly, the many agencies play a major role in the lives and welfare of all.
The Evolving But-For Standard in Employment Law By Elisabeth Mustoe September 2023 In its most recent ruling on the subject of mixed motive versus but-for causation, the U.S. Supreme Court announced that discrimination claims brought under Section 1981 of the Civil Rights Act of 1866 are subject to the heightened but-for standard.
Federal Trade Commission Rule to Make Non-Compete Agreements Unfair Trade Practices Comments to Proposed Rule Due March 20, 2023 By David C. Brezina February 2023 On January 5, 2023, the Federal Trade Commission published a Notice of Proposed Rulemaking for a rule to ban non-compete clauses. 
Final Regulations Governing Illinois Equal Pay Act’s Certification Requirements Are Published By Stacey A. Bastone, Thomas E. Berry, Jr., Daniel Corbett, & Thanin O. Stewart February 2023 The long-awaited regulations from the Illinois Department of Labor governing the amendments to the Illinois Equal Pay Act were published, further clarifying the practical implications of obtaining an equal pay registration certificate under the IEPA.
Illinois Amends Day and Temporary Labor Services Act By Katharine P. Lennox, Dawn Cutlan Stetter, & Michael R. Phillips September 2023 On Aug. 4, 2023, Illinois Gov. J.B. Pritzker signed House Bill 2862 / Public Act 103-437, making significant changes to Illinois’ Day and Temporary Labor Services Act.
Illinois Employment Update 2024 By Patrick F. Moran, Susan J. Best, & Brian Roth December 2023 Summaries of laws that go into effect in 2024 that Illinois employers should prepare for.
Illinois Legislature Passes More Employee-Friendly Bills By Daniel O. Canales & Jennifer Long September 2023 Summaries of new employee-friendly bills that will impose new obligations for Illinois employers.
Illinois Plaintiffs’ Attorneys Find New Tool in Old Genetic Privacy Law By Francis X. Nolan, IV & Ian N. Jones December 2023 Although the Illinois Genetic Information Privacy Act was largely ignored by plaintiffs’ attorneys until this year, its substantial statutory penalties and recent caselaw make it an enticing option for plaintiffs’ class action lawyers.
Illinois Supreme Court Clarifies Biometric Information Privacy Act By Ashley Orler & Alyssa Watzman July 2023 Summaries of three recently issued Illinois Supreme Court cases that interpreted provisions of the Illinois Biometric Privacy Act.
Newly Enacted Federal ‘Speak Out Act’ Limits Use of Some Sexual Harassment NDAs By Michael Arnold & Corbin Carter February 2023 President Biden has signed into law the federal Speak Out Act limiting the enforceability of pre–dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes. 
NLRB and OSHA Announce Partnership Over Worker Safety Protections By Heather L. McDougall, Kaiser H. Chowdhry, David R. Broderdorf, John F. Ring, Michael K. Taylor, & Megan L. Lipsky December 2023 The National Labor Relations Board and Occupational Safety and Health Administration executed a memorandum of understanding regarding a partnership designed to strengthen their efforts to protect workers who either speak out about health and safety working conditions or engage in potential protected activity that triggers anti-discrimination and/or whistleblower protection under both federal labor law and health and safety laws.
NLRB Announces Most Expansive Definition of Joint Employment Yet, With Potential Significant Implications for Franchisors, Staffing Agencies and More By Caroline Burnett, JT Charron, William F. Dugan, Kimberly Franko, Autumn Sharp, & Will Woods December 2023 An overview of the new standard for "joint employer" status.
The NLRB Ends August 2023 With a Bang By Richard A. Russo December 2023 Summaries of pro-union/employee decisions made by the National Labor Relations Board in August 2023.
NLRB Expands Standard Remedy Available for Unfair Labor Practices By David Phippen February 2023 The National Labor Relations Board, in a recent 3-2 decision, expanded the remedy available for unfair labor practices to include a make-whole remedy for “all direct or foreseeable pecuniary harms” resulting from the violations. 
Say What? NLRB Rules Employees May Tape Record Others in Violation of State Law By Elizabeth Torphy-Donzella July 2023 A summary of the National Labor Relations Board's ruling against Starbucks, clarifying whether employees can be disciplined for recording conversations with management officials.
The Supreme Court Redefines the Religious Accommodation Obligation for Employers By Fiona W. Ong & Elizabeth Torphy-Donzella September 2023 On June 29, 2023, a unanimous U.S. Supreme Court ruled that religious accommodations under Title VII of the Civil Rights Act must be provided to employees or prospective employees unless the employer is able to demonstrate that the burden is substantial.
Supreme Court Rules High Earning Professionals Are Not Overtime-Exempt if Paid Hourly By Kenneth Kirschner, Zachary Siegel, & Heather McAdams July 2023 In Helix Energy Solutions Group, Inc. v. Hewitt, the U.S. Supreme Court provided important guidance for employers with high earning employees.
Update on the ISBA’s Diversity, Equity, Inclusion, and Accessibility Initiatives Regarding Disability and Disabled People By Patti Chang February 2023 Updates on the ISBA's diversity, equity, inclusion, and accessibility initiatives with respect to disability and disabled people.
U.S. Department of Labor Announces Final Rule Revamp of the Davis-Bacon Act By Timothy Taylor & Nicole Elliott September 2023 The U.S. Department of Labor has announced the finalization of its new rule relating to the Davis-Bacon Act.
With Charge Against Apple, NLRB General Counsel Seeks to Expand Scope of Protected Concerted Activity By Nicholas S. Ruble July 2023 Apple was recently charged with violating the NLRA by enforcing a facially neutral policy against solicitation and distribution in the workplace.