By Alex Meier

Seyfarth Synopsis: Last week, in connection with a House Oversight hearing, Representative Carolyn Maloney (D-N.Y.) introduced legislation to restrict confidentiality provisions from covering claims of discrimination, harassment, and retaliation. The “Accountability for Workplace Misconduct Act,” H.R. 8146, appears to be a federal effort to expedite the state-level trend to exempt discrimination, harassment, and retaliation information from confidentiality restrictions.

Over the last decade, lawmakers at the state and federal level have introduced and passed legislation designed to limit the reach of confidentiality provisions in certain circumstances. Those modifications include:

  • The Defend Trade Secrets Act of 2016 (“DTSA”) (Federal) – As we have extensively covered, the DTSA created a federal cause of action for trade secret misappropriation and protects individuals from civil liability for disclosing a trade secret if the disclosure is made in confidence to a governmental official or attorney and for the purpose of reporting a violation of law. This extension of immunity has been used to protect individuals who disclose alleged trade secrets to their counsel. The DTSA also contains a provision that requires a notice of immunity for a plaintiff to recover exemplary damages and attorneys’ fees.
  • The Stand Together Against Non-Disclosures Act of 2018 (“STAND Act”) (California) – This Act prohibits in settlement agreements only a confidentiality provision that restricts the disclosure of factual information related sexual assault, sexual harassment, discrimination, or retaliation for reporting harassment or discrimination based on sex.
  • The Silenced No More Act (California (2021) and Washington (2022)) – California and Washington pass legislation that prohibits non-disclosure and non-disparagement provisions that cover any conduct that an employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage-and-hour-violation, sexual assault, or conduct that is recognized as against a clear mandate of public policy. Both states also authorize a cause of action against any employer who enters into a prohibited agreement.

Like the STAND Act, the bill limits its coverage to non-disclosure provisions in settlement agreements, so it would not impact confidentiality agreements outside the settlement context. Unlike the STAND Act, as presently drafted, the bill would invalidate a confidentiality provision for the following reasons:

  • No carve-out for government disclosures – the confidentiality provision cannot prohibit a party from disclosing information to the government or law enforcement relating to conduct that is unlawful or that the employee believes to be unlawful
  • No communication about government carve-out – the employer must communicate that the agreement does not restrict disclosures to the government or law enforcement for unlawful conduct or conduct the employee believes to be unlawful
  • Confidentiality agreement requires pre-disclosure notification – the confidentiality provision cannot require that the employee notify the employer before disclosing specified information to the government or law enforcement
  • No notification – the employer must include the following disclaimer: ‘‘Nothing in this agreement prevents you from disclosing information to Congress, a Federal, State, or Local government entity, or law enforcement about behavior you reasonably believe constitutes harassment, discrimination, or retaliation”
    • It seems that this disclaimer should satisfy the notification obligation
  • Consideration period – the agreement must provide a 21-day consideration period and 7-day revocation period, which mirror the non-reduction in force consideration periods in agreements containing Age Discrimination in Employment Act releases
  • No interference – in the most concerning provision, the bill would invalidate confidentiality restriction if the employer “engages in behavior to intimidate, hinder, obstruct, impede, retaliate against, or otherwise discourage an employee subject to a non-disclosure agreement” from communicating with the government or law enforcement

In addition to these potential avenues to invalidate a non-disclosure provision, the bill also includes requirements for employers to establish specified processes for receiving and investigating alleged discrimination, harassment, and retaliation, as well as empower the Equal Employment Opportunity Commission to investigate alleged violations of reporting procedure requirements.

The bill is also notable for what it does not address. The proposed legislation does not impact non-disparagement provisions, nor does it affect confidentiality provisions that are not included in settlement agreements.

We will continue to monitor this and other pending legislation at the federal and state level.

By Linda C. Schoonmaker and Tayte Doddy (Summer Fellow)

Seyfarth Synopsis: Even before the pandemic made in-person work in many industries a thing of the past many employers had stopped requiring that their employees execute employee agreements like non-competition and arbitration agreements with a  “wet signature”. Instead, those kind of agreements frequently are acknowledged by the employee electronically. Although the increase in remote work arrangements also increased the elimination of the “wet signature” practice, many employers with employees who work in the workplace use the electronic acknowledgement practice as well. The Second Circuit, however, recently made it more challenging for employers to compel arbitration in that context when the employee says What? That’s not my signature!

Savannah Barrows started working for a Chili’s chain restaurant in Liverpool, New York in March 2015. Three months into her employment, the Chili’s location was acquired by Brinker Restaurant Company. Barrows worked at that Chili’s location until January 2019, when her employment ended just shy of her fourth year anniversary.

After her employment ended, Barrows sued Brinker for various employment law violations Brinker asked the court to dismiss the claims and compel Barrows to submit to arbitration, pursuant to an electronically signed agreement by Barrows to arbitrate all claims.

Various managers who worked with Barrows provided testimony that all employees were required to electronically sign the arbitration agreements. Surprisingly, the employer’s testimony was contradicted by their own evidence, when Brinker later produced a physical copy of the arbitration agreement with a “wet” signature of a second named plaintiff in the case.

Despite Brinker having Barrows’ electronic signature on the arbitration agreement, Barrows responded to the motion with a sworn declaration in which she denied ever signing the agreement and that she had no knowledge of any electronic document system. She claimed that the only documents she ever signed were paperwork documents in her initial hiring, and that she never was presented with any new paperwork or electronic documentation after the Chili’s was acquired by Brinker.

The district court granted Brinker’s motion to compel arbitration on the grounds that Barrows did not present any evidence to create a dispute of material fact. On appeal, the Second Circuit reversed the holding, on the grounds that the district court completely ignored Barrows’ sworn declaration in which she denied having any knowledge of the agreement or signing any documents electronically. In prior Second Circuit cases, personal testimony and declarations have been allowed as evidence to create issues of fact and to defeat motions of summary judgment, so Barrows’ declaration here would be sufficient to create a material issue of fact  The Second Circuit vacated the judgment and remanded the case back to the lower court to resolve the question of whether arbitration should be compelled taking into account Barrows’ declaration this time .

Lessons learned from this case:

UNIFORMITY

Not having uniform onboarding practices hurt Brinker here. The Second Circuit honed in  on the issue that the second named plaintiff in the case had a physical, “wet” signature on his arbitration agreement, which ultimately brought uncertainty to Brinker’s method of gathering signatures from employees. If the second named plaintiff had an electronic signature like Barrows instead of a wet signature, Barrows’ argument would not likely have appeared credible to the court. But, because Brinker was not uniform in their process of collecting signatures, the discrepancy cast doubt on the authenticity of Barrows’ electronic signature, all the while making Barrows’ declaration that she did not sign more credible and plausible.

The holding in Barrows places an increased burden of uniformity and organization on employers when collecting signatures from their employees. Thus, employers should ensure that they are implementing uniform processes when handling employee documentation. Whether it be all documents are signed on paper, or all documents are signed electronically online, having one uniform process lowers the risk of the employer appearing to be disorganized and/or potentially mishandling employee documents. The Second Circuit discussed in the opinion that only personal testimony that blatantly contradicts the record or of which is grossly implausible to a reasonable person will fail to create genuine issues of fact, so employers can protect themselves up front by being organized and uniform in their onboarding processes to eliminate any doubt on their end.

TWO FACTORS

The court also considered the possibility that Barrows’ signature was forged by Chili’s management, because the employee onboarding accounts passwords were generated by a mix of information the management had direct access to (birth date, social security number, etc.) Because the managers are in control of the online onboarding software and can access employee accounts, the possibility that the employer could falsify a signature must be considered.

Employers may find two factor verification, the process of requiring confirmation from two separate sources, to be helpful in providing indisputable evidence of signatures in the future. For example, an employer could require employees who provide an electronic signature to confirm their signature through a separate verification email, as a second account of the employee signing the document. Clicking a verification link on an email is quick, provides the employer with a second confirmation of the signature, and eliminates speculation that the employer might have tampered with or forged an employee’s signature for them. If an employee has the added task of signing into their personal email account to verify that they signed a document, that in itself is good evidence that the employee in fact knew and agreed to what they were signing even though it was an electronic signature. This could protect employers against denials and declarations of employees in the future at a low cost.

By Gillian B. Lepore, Meg Toth, and Sara Eber Fowler

Seyfarth Synopsis: Illinois recently amended its Child Bereavement Leave Act to expand the reasons for leave, including miscarriage and stillbirth, and adds additional covered family members.  The law will now be called the “Family Bereavement Leave Act” and goes into effect on January 1, 2023. 

On June 9, 2022, Governor Pritzker signed the Family Bereavement Leave Act (“FBLA”) into law, amending the Child Bereavement Leave Act (“CBLA”).  As the name change suggests, the FBLA expands the scope of the CBLA by expanding the availability of unpaid bereavement leave to cover additional family members and reasons for leave.

While bereavement leave was previously only available (under the CBLA) for the death of a child, the FBLA provides for bereavement leave for the death of a “covered family member,” which now includes an employee’s:

  • Child
  • Stepchild
  • Spouse
  • Domestic partner
  • Sibling
  • Parent or step-parent
  • Mother-in-law or father-in-law
  • Grandchild
  • Grandparent

Effective January 1, 2023, employers with 50 or more employees must provide unpaid leave to employees to:

  • Attend the funeral or alternative to a funeral of a covered family member;
  • Make arrangements necessitated by the death of the covered family member;
  • Grieve the death of the covered family member; or
  • Be absent from work due to (i) a miscarriage; (ii) an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure; (iii) a failed adoption match or an adoption that is not finalized because it is contested by another party; (iv) a failed surrogacy agreement; (v) a diagnosis that negatively impacts pregnancy or fertility; or (vi) a stillbirth.

Consistent with the CBLA, leave under the FBLA must be completed within 60 days of the date on which the employee receives notice of the death of the covered family member or the date on which an otherwise qualifying event occurs.  Employees are still entitled to 10 work days of unpaid leave.  In the event of the death of more than one covered family member in a 12-month period, an employee is entitled to up to 6 weeks of bereavement leave during that period.

Like the CBLA, employees are only eligible to take leave under the FBLA if they are also an eligible employee under the Federal Family and Medical Leave Act (“FMLA”).  Eligibility under the FMLA requires 12 months of employment, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.  The FBLA does not create a right for an employee to take unpaid leave that exceeds the unpaid leave time allowed under the FMLA.

An employer may require reasonable documentation for leave under the FBLA, but for leave resulting from miscarriage, stillbirth, failed adoption or other pregnancy related loss, the employer may not require that the employee identify which category of event the leave pertains to. The Illinois Department of Labor will be publishing a model form to be used by employers requesting documentation from employees taking leave for these reasons that complies with the FBLA.

What Steps Should Employers Take?

Employers should review and revise company bereavement leave policies for compliance with the FBLA’s requirements before January 1, 2023, and train managers and appropriate HR/leave professionals about the changes to this law impacting Illinois employees.

We will continue to monitor and provide updates on any developments as the FBLA’s effective date approaches. With the leave landscape continuing to rapidly expand, we encourage companies to reach out to the authors, a member of the Workplace Counseling Team or their Seyfarth contact for solutions and recommendations for addressing compliance with applicable requirements.

By Kimberly Shen (Summer Fellow) and Timothy M. Rusche

Seyfarth Synopsis: On May 31, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment in the employer’s favor on Title VII race discrimination and work retaliation claims filed by a Black dental assistant. In rejecting the plaintiff’s claims, the Court highlights the importance of documenting employee performance issues in order to avoid the appearance of discriminatory intent.

Picture this: An employee who is a member of a protected class receives a negative performance review and later files suit against his/her employer, alleging discrimination. Meanwhile, the employer claims that the negative review was justified due to poor job performance.

Sadly, such conflicts are not uncommon in the world of labor and employment, leaving many employers with the question: What factors help influence the outcomes of such cases?

A recent case from the U.S.  Court of Appeals for the Seventh Circuit helped shed some light on this question.

Case Background

In Abebe v. Health and Hospital Corporation of Marion County, Lily Abebe, a Black woman of Ethiopian descent, started her employment in 2014 as a dental assistant at the Health and Hospital Corporation of Marion County, also known as Eskenazi Health.

Throughout her employment, Abebe amassed a record that showed a history of behavior problems. For example, in her 2016 performance review, the clinic manager gave her a low score in a category called “respect,” citing her negative attitude and poor interactions with coworkers.

Meanwhile, in her 2017 performance review, Abebe was disciplined after she had an argument with a coworker, and Abebe received a negative performance review in the category of “professionalism.” The review stated that “when she gets upset, her attitude turns shocking.” That same review also highlighted Abebe’s consistent interpersonal difficulties with coworkers, noting that “many of Lily’s coworkers [see] her as unapproachable.”

In 2018, Abebe received another negative performance review that cited her problems with teamwork and communication. Given her persistent history of negative reviews, Abebe was denied a merit-based raise. Abebe then filed a Charge with the Equal Employment Opportunity Commission (“EEOC”), alleging race and national origin based discrimination. Abebe thereafter, claimed that she was placed on a Performance Improvement Plan shortly after her contact with EEOC. Abebe sued Eskenazi Health, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.

The Court’s Decision

A district court granted summary judgment in Eskenazi Health’s favor, and Abebe appealed the decision. After hearing her case, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision. The Court held that Abebe failed to identify a proper comparator to support her allegations of discrimination, because she did not identify a similarly disrespectful employee outside her protected class who was treated more favorably. The Court also ruled against Abebe’s retaliation claim, holding that Abebe failed to establish a causal connection between her contact with the EEOC and the issuance of the Performance Improvement Plan.

Implications for Employers

Abebe v. Health and Hospital Corporation of Marion County is only one of many cases amidst a growing landscape of increased discrimination and retaliation claims in the labor and employment legal field. From a legal perspective, this ruling demonstrates that employment discrimination cases are often entangled in complex considerations, which have led courts to look for factors such as a proper comparator supporting an employee’s allegations of discrimination when deciding whether or not to grant summary judgment. Thus, in light of such cases, employers should clearly and consistently document performance issues to prevent even the appearance of discriminatory intent behind corrective job actions.

If you have any questions regarding this case, please contact the authors, a member of Seyfarth’s Employment Litigation Team or your Seyfarth attorney.

By Michael J. Cederoth, Rachel Duboff*, and Erin Dougherty Foley

Seyfarth Synopsis: Accommodation requests continue to vex employers as they attempt to balance an employee’s religious beliefs with the overall needs of the business operations. But try they must. 

Notwithstanding the mangled Yoda quote above, as more employees return to in-person work, it is important to remember an employer’s obligations to accommodate its employees. Chief among them: accommodations for religious beliefs.  The Third Circuit’s recent opinion in Groff v DeJoy presents a thorough outline of an employer’s obligation to attempt to accommodate employee’s religious beliefs. Plaintiff Gerald E. Groff was a postal worker with the U.S. Postal Service (“USPS”) and was expected to work Sundays. The USPS had entered into a contract with Amazon, which required the delivery of packages on Sundays and the success of the Sunday delivery was critical to USPS. After Groff alerted USPS that he could not work on Sundays in accordance with his religious beliefs, USPS attempted to accommodate Groff by allowing him to voluntarily switch shifts. While his supervisor undertook time consuming efforts to find coverage, there were still a number of Sundays in which Groff’s shift was not covered, impacting service standards, and which resulted in progressive discipline to Groff. Ultimately, other USPS employees were forced to bear the burden of Groff’s Sunday shift through increased workload and assignment to Sunday shifts. This impacted productivity and moral and bred resentment among the employees who were forced to pick up the slack. While Groff requested an accommodation that completely excused him from Sunday work, there was no other position to which Groff could transfer that did not require Sunday work.  After receiving discipline for refusing to work, Groff resigned. He sued alleging disparate treatment and a failure to accommodate his religious beliefs.

The Third Circuit ultimately upheld a grant of summary judgment in favor of USPS finding that accommodating Groff by excusing him from Sunday work created an undue burden by increasing the workload on his co-workers, disrupting the workplace and workflow, and diminishing employee morale. The important takeaways from the decision for employers are as follows:

A Successful Accommodation Must Eliminate the Conflict Between Job Requirements and Religious Practices

A good-faith reasonable accommodation goes beyond taking a neutral stance toward employees both religious and non-religious accommodation requests. Instead, the employer has an affirmative obligation to attempt to eliminate the conflict between job requirements and religious practices. This means that the employer must proactively modify its conduct to allow the employee to maintain their full religious practice. Put simply, an accommodation that in theory would eliminate this conflict is not enough.

While shift-swapping can otherwise be considered a reasonable accommodation to allow an employee to observe the Sabbath, the Third Circuit here found it was not reasonable because USPS could not find coverage for Graff at least two dozen times. In other words, because the conflict between his request to be off work and the need for daily delivery was not eliminated, the accommodation was not successful.

Reasonableness is Considered on a Case-by-Case Basis

There is no perfect answer to ensuring the reasonableness of the accommodation for the employee’s sincerely held religious belief.  Indeed, eliminating the conflict does not mean the accommodation is necessarily reasonable. However, attempting to eliminate that conflict is a minimum threshold in the reasonableness analysis.

There is No Failure to Provide a Religious Accommodation If Employers Can Show Undue Hardship

Examples of undue hardship are case specific and require showing more than a de minimis cost to the employer and its business. The Equal Employment Opportunity Commission in particular states that evidence must exist that the accommodation would cause disruptions to the workplace or infringe on the rights of other employees. Groff demonstrates that such workplace disruptions and negative impacts upon workplace morale can be sufficient evidence to show undue hardship.

What Qualifies as Undue Hardship? These negative costs can be both economic and non-economic, such as:

  • The time consuming process of finding coverage;
  • Increasing workload on other employees;
  • Paying overtime to ensure coverage;
  • Creating a tense atmosphere among remaining employees;
  • Morale problems resulting among remaining employees; and
  • Providing exemption which might otherwise violate state law.

Requests for religious accommodations are not new inquiries, but they have also become more prevalent with the continued recommendation of COVID-19 vaccines by the CDC. Thus, it is important consider the main points of the Groff decision and thoughtfully interact and craft accommodations for employees(and applied consistently as to all employees). When accommodations cannot be made, the employee should be notified as to why and those reasons should be contemporaneously documented.

*Rachel Duboff is a Senior Fellow with the Firm and the additional authors thank her for her assistance in drafting this post.

By Gillian B. Lepore, Vy’Shaey M. Mitchell, and Sara Eber Fowler

Seyfarth Synopsis: Chicago’s amendments to its Human Rights Ordinance – expanding the definition of sexual harassment and implementing new policy and training requirements – go into effect on July 1, 2022. Employers should ensure that they are updating their policies and training plans accordingly.

The City of Chicago recently passed amendments to its Human Rights Ordinance to “uphold zero tolerance of violence and harassment in the workplace” and adding additional significant protections for employees subjected to sexual harassment.  The amendments modify (and expand) the definitions of “sexual harassment” and “sexual orientation” in the Chicago Human Rights Ordinance, create new written policy and training requirements for all employers in the city, and impose increased penalties for violations of the ordinance. The policy, notice, and training requirements go into effect on July 1, 2022.

Sexual Harassment Includes Sexual Misconduct

The definition of “sexual harassment” in the Ordinance has been amended to explicitly include a definition for sexual misconduct.  Sexual harassment is now defined as any:

(i) unwelcome sexual advances or unwelcome conduct of a sexual nature; or

(ii) requests for sexual favors or conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or (2) submission to or rejection of such conduct by an individual is used as the basis for any employment decision affecting the individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment; or

(iii) sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual’s employment position.”

The inclusion of “sexual misconduct” broadens the definition of sexual harassment typically seen in employment policies and the EEOC’s definition.

In addition, the ordinance modifies the definition of sexual orientation, which is now defined as “a person’s actual or perceived sexual and emotional attraction, or lack thereof, to another person.”

These amended definitions became effective June 4, 2022.

Policy Requirements

Effective July 1, 2022, all employers within the City of Chicago are required to have a written policy prohibiting sexual harassment.  The written policy must include, at a minimum:

  • A statement that sexual harassment is illegal in Chicago.
  • The updated definition of sexual harassment.
  • A requirement that all employees participate in sexual harassment prevention training annually.
  • Examples of prohibited conduct that constitute sexual harassment.
  • Details on how an individual can report an allegation of sexual harassment, including, as appropriate, instructions on how to make a confidential report, with an internal complaint form, to a manager, employer’s corporate headquarters or human resources department, or other internal reporting mechanism; and legal services, including governmental, available to employees who may be victims of sexual harassment.
  • A statement that retaliation for reporting sexual harassment is illegal in Chicago.

The written policy must be available in the employee’s primary language within the first calendar week of starting employment. Additionally, employers will be required to display a poster advising of the prohibition on sexual harassment where employees can see it.  The City has stated it will post model sexual harassment policies in English, Spanish, Polish, Chinese, Arabic and Hindi, as well as a poster containing the requirements, to its website prior to the time the amendment takes place on July 1, 2022.

Training Requirements

Effective July 1, 2022, all Chicago employers must provide annual sexual harassment training to employees.  Training must include: 1 hour of sexual harassment prevention for all employees (2 hours for supervisors/managers) and 1 hour of bystander training for all employees.  The City has stated that the State’s sexual harassment training template, which provides one hour of training, will be sufficient to comply with the required hour of sexual harassment prevention training for employees.  Employers must conduct the first round of required training between July 1, 2022 and June 30, 2023 and annually thereafter.

Statute of Limitations an Penalty Changes for All Forms of Discrimination

The ordinance additionally amends other areas of the municipal code, impacting all claims of discrimination by employees.  Complainants will now have 365 days, instead of 300, to report all forms of discrimination, including sexual harassment, to the Chicago Commission on Human Relations.

Further, penalties for all forms of discrimination will be increased from $500-$1,000 per violation to $5,000-$10,000 per violation.  These changes became effective June 4, 2022.

Document Retention Requirements and Penalties

Employers must retain written records of the written policies, trainings provided, and all other records necessary to show compliance with the ordinance for at least five years or the duration of any claim, civil action or investigation pending pursuant to the Ordinance, whichever is longer. Failure to maintain the required records creates a rebuttable presumption that the employer violated the sexual harassment requirements of the Ordinance.

Violations of the written policy, notice, or recordkeeping requirements will result in fines ranging between $500 and $1,000 per day per offense.

Differences Between Chicago and Illinois Requirements

Employers in Illinois have been required to provide annual sexual harassment prevention training to employees since 2020.  However, Chicago’s amended Ordinance has several requirements that will not be satisfied by compliance with Illinois’ requirements.

  • Under Illinois’s Human Rights Act, only restaurants and bars are required to have written policies on sexual harassment prevention, whereas Chicago’s Ordinance requires such a policy for all
  • As detailed above, Illinois’ required training will satisfy a portion of Chicago’s required trainings. But, Chicago’s training requirements are more robust in both length and content than the state requirements.
  • The IHRA does not have any notice or recordkeeping requirements, while the City Ordinance requires both – with steep penalties for noncompliance.

What Steps Should Employers Take?

  • Review and revise company sexual harassment policies for compliance with the ordinances’ requirements before July 1, 2022.
  • Plan and prepare to provide the required training to employees between July 1, 2022 and June 30, 2023.

We will continue to monitor and provide updates on any developments as the Ordinance’s effective date approaches. With the mandatory sexual harassment policy and training landscape continuing to rapidly expand, we encourage companies to reach out to the authors, a member of the Workplace Counseling Team or their Seyfarth contact for solutions and recommendations for addressing compliance with applicable requirements.

By Angelina Evans

Seyfarth Synopsis:  On May 13, 2022, FINRA filed a proposed rule change to conform the Industry Code to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.  FINRA filed the proposed rule change with immediate effectiveness requesting the SEC to waive the 30-day operative delay. The rule change is effective as of May 13, 2022 as reported in the Federal Register on May 24, 2022.

On May 13, 2022 FINRA proposed rule changes to conform the FINRA Industry Code to the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.”  According to the proposed rules, firms are required to disclose to an associated person that a party alleging a sexual assault or sexual harassment claim may elect, post dispute, not to arbitrate such a claim under the Code.  Several other sections of the Industry Code are being amended to conform the procedural rules imposed in statutory discrimination arbitrations to sexual assault and/or sexual harassment arbitrations.

FINRA filed the proposed rule changes for immediate effectiveness.  The operative date will be the date of filing of the proposed rule changes – May 13, 2022, as provided in the Federal Register on May 24, 2022 (Vol. 87, No. 100, P. 31592).  2022-11062.pdf (finra.org).

The full proposed language for the new rules are available on the FINRA website: sr-finra-2022-012.pdf.

By Samantha L. Brooks and Eric J. Janson

Seyfarth Synopsis: In Lyons v. City of Alexandria, No. 20-1656, 2022 WL 1739987 (4th Cir. June 1, 2022), the Court issued an employer-friendly decision under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (“Title VII”), reiterating that employers should not be punished “for implementing lawful and nondiscriminatory business practices.”  The Court affirmed summary judgment for the City where Plaintiff presented no evidence of race discrimination and only alleged that he misunderstood his employer’s policy.

In 2016, while employed by the Alexandria Fire Department (“AFD”) as a firefighter, Plaintiff began the process of becoming a paramedic.  With AFD’s help and support, Plaintiff satisfied the various educational requirements (including on-the-job training in an AFD medic unit) and, in August 2017, eventually passed the required written examinations on his sixth attempt.  Once he passed the written examinations, he became eligible for the required one-year Advanced Life Support Internship Program at the AFD, after which point he would become a paramedic.  However, he was not promoted to the internship until five months after he passed the written examinations.  During that time, Plaintiff did not receive the increased pay or rank that came with being a paramedic intern.

During the five month delay, Plaintiff claimed that the AFD’s Emergency Medical Services Training Officer and Deputy Chief of Emergency Medical Services told him that firefighters were typically placed in the internship program on a “first come, first served” basis after becoming eligible.  However, when Plaintiff saw three other white colleagues on different AFD shifts promoted to the internship before him, he believed AFD was delaying his promotion because of his race (Black) and that it was violating its own placement practices.  AFD, however, explained that the “first come, first served” practice was shift specific.  For example, the AFD had three shifts, and an applicant on one particular shift would not be placed into the internship until a spot on their particular shift became available.

The District Court granted summary judgment to the City of Alexandria, and found that Plaintiff had failed to create a genuine issue of material fact that the AFD did not have a shift-specific, first come, first served internship placement practice.

Without direct evidence of discrimination, the Fourth Circuit engaged in the familiar McDonnell Douglas Corp. burden-shifting analysis.  The Court found that although Plaintiff could establish the first three elements of a prima facie case of race discrimination, i.e., that he was a member of a protected class, that he applied for the internship, and that he was qualified for the internship, he did not establish that the delay in his placement in the internship gave rise to an inference of unlawful race discrimination.

Specifically, the Court held that the AFD put forward record evidence that its general practice was to place interns on a first come, first served basis based on their shift, and that the three white firefighters who were assigned the internship ahead of Plaintiff were so assigned in accordance with this general practice.  In contrast, Plaintiff’s only evidence was based on his “understanding” that the policy was first come, first served, without regard to shift.  The Court held, however, that Plaintiff’s understanding of the policy as told to him by AFD’s Emergency Medical Services Training Officer and Deputy Chief of Emergency Medical Services is not sufficient to raise a dispute of material fact in light of the evidence presented by the AFD.  Indeed, the AFD’s evidence confirmed the first come, first served by shift practice had been historically followed and that Plaintiff received the first available internship on his shift consistent with that practice

Ultimately, the Fourth Circuit affirmed summary judgment and similarly held that Plaintiff’s misunderstanding of the AFD’s internship placement practice did not suffice to demonstrate a genuine issue of material fact.  The Court also reiterated that in the absence of evidence creating a genuine issue of material fact, it “must ensure that employers are not punished for implementing lawful and nondiscriminatory business practices.”

So what does Lyons mean for employers?  It is of critical importance that employers have a comprehensive employee handbook (or, at minimum, a strong set of employment policies) notifying employees of the terms and conditions of their employment, including certain rights, benefits and/or privileges established by state and federal law.  While these employment policies may not cover every possible workplace scenario, the Fourth Circuit Lyons decision provides reassurance that employers will not be penalized for any ambiguities in their policies if they can demonstrate that practices are consistently and historically followed without regard to an employee’s race or other protected category.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.

 By Christina Jaremus, Adam J. Rongo, and Erin Dougherty Foley

 Seyfarth Synopsis: Recent and Important Amendments to Illinois’ One Day Rest in Seven Act.

The COVID-19 pandemic forced the world to re-think about the way we live and work in a number of ways.  For instance, exceedingly flexible teleworking schedules in work settings conducive to remote work seem to be here to stay.  The Illinois legislature recently decided that non-exempt employees in Illinois need more time to rest and eat too.  Governor J.B. Pritzker signed Senate Bill 3146 into law on May 13, 2022, which amends the One Day Rest in Seven Act (“ODRISA”).  The amended version of the Act takes effect on January 1, 2023 and imposes hefty penalties on employers for their failure to comply.

Employees Are Entitled To One Rest Day For Each Consecutive Seven Day Period

The Illinois legislature’s amendment to the ODRISA further prioritizes rest for non-exempt employees.  The amendment requires employers to provide non-exempt employees with at least 24-hours of rest in every consecutive seven day period.  The prior version of the law only required a 24-hour rest period at least once every calendar week (Sunday through Saturday).  This allowed employers to schedule non-exempt employees for more than seven consecutive days of work without a day off.  820 Ill. Comp. Stat. Ann. 140/2, 4.  For example, under the prior version of the Act, an employer could schedule an employee to work on Monday of the first week through Friday of the following week, as long as the employee had one day off at any point during both calendar weeks (Sunday in the first weekend and Saturday in the second).  Effective January 1, 2023, non-exempt employees cannot work more than seven consecutive days without a 24-hour period of rest.

Employees Are Entitled To Additional Meal Breaks For Longer Shifts

The amendment also requires employers to provide employees with additional meal periods when they work long shifts.  The prior version of the law permitted employees who worked for 7 1/2 continuous hours or more with at least 20 minutes for a meal period beginning no later than 5 hours after the start of the work period.  Previously, employees had to work a 15-hour shift before they were entitled to a second meal break. 820 Ill. Comp. Stat. Ann. 140/5  The amended version of the statute requires that an employee who works 7 1/2 continuous hours is entitled to an additional 20–minute meal period for every additional 4 1/2 continuous hours worked.  Employees who work 12-hour shifts will no longer need to smuggle an emergency Snickers bar in their purse.  As of January 1, 2023, they will now be entitled to two 20-minute meal breaks.

Employers Face Increased Penalties for Violations

Failure to provide meal and rest breaks will also cost employers much more in 2023.  Employers will, in effect, end up buying employees what amounts to a steak dinner for two at the fanciest restaurant in town for each meal period or rest day violation.  The prior version of the law made violations a petty offense, subject to a penalty for each offense between $25 and $100.  820 Ill. Comp. Stat. Ann. 140/7.  The amended law makes violations a civil offense and significantly increases penalties as follows:

  • For an employer with fewer than 25 employees, a penalty not to exceed $250 per offense, payable to the Department of Labor, and damages of up to $250 per offense, payable to the employee or employees affected.
  • For an employer with 25 or more employees, a penalty not to exceed $500 per offense, payable to the Department of Labor, and damages of up to $500 per offense, payable to the employee or employees affected.

Each week where an employee has not been allowed non-exempt employees with additional meal periods and each day has not been provided a meal period constitute separate offenses.  The Director of Labor can enforce the statute in accordance with the Illinois Administrative Procedure Act and the amended statute allows for the Director and parties to take depositions, issue subpoenas, and otherwise engage in discovery in accordance with the Illinois Administrative Procedure Act.

Employers Must Provide Notice Of The ODRISA Amendments

The amended law requires employers to notify their employees about their rights under the ODRISA. The Illinois Department of Labor will provide the requisite notice to post.  If employees are working remotely or traveling as opposed to appearing in the workplace physically, employers must provide notice via email or on the employer’s website.  Violations of the notice provision subject employers to civil penalties not to exceed $250 payable to the Department of Labor.

Employers Should Modify Applicable Policies Before The Effective Date Of The Amendments

Given that the amendments do not take effect until January 1, 2023, employers have ample time to modify existing scheduling, timekeeping, break, and any other applicable policies to ensure compliance.  If you need assistance with the same, please contact your favorite Seyfarth attorney.

By Megan Toth, Partner, Thomas Horan, Associate, and Gillian Lepore, Associate

Please join our Seyfarth Chicago Labor & Employment attorneys to learn about best practices for conducting investigations of internal workplace complaints and the importance of taking prompt and thorough action to address those complaints and prevent harassment, discrimination and other policy violations.

This program will cover all the ins and outs of the internal investigations process, including:

  • how to identify and escalate internal complaints and other workplace concerns when they arise;
  • best practices for conducting a thorough internal investigation of workplace complaints;
  • what can happen if an investigation is handled poorly; and
  • the importance of maintaining a culture of respect and how to avoid workplace issues from arising in the future.

We hope you can join us!

REGISTER HERE!

Wednesday, June 15, 2022
8:30 – 9:00 a.m. Breakfast and Registration
9:00 – 10:30 a.m. Program

Seyfarth Shaw LLP
233 S Wacker Drive, Suite 8000
Chicago, IL 60606

Please review our Office Visitor Safety Guidelines. In the days leading up to the event, we will email you a COVID-19 Visitor Questionnaire that is required for all visitors to enter our space.