Image of a shopping cart on top of a computer.

Seyfarth Synopsis: Are web-only businesses subject to Title III? A Minnesota federal court joins the controversy and says yes.

Courts around the country are split on the issue of whether a “place of public accommodation” subject to Title III of the Americans with Disabilities Act must have a physical location where it serves the public.  A federal trial court in Minnesota recently denied a web-only business’s motion to dismiss, ruling that web-only businesses are covered by Title III, siding with the courts that have concluded that no physical place is required.

Recognizing the disagreement among federal appellate and trial courts on this issue, as well as the fact that the Eighth Circuit Court of Appeals (within which the District of Minnesota sits) has not opined on the issue, the Court went to great lengths to justify its decision that a “public accommodation” does not have to be a physical place.

First, the Court sought to distinguish the Third, Sixth, and Ninth Circuit decisions finding that public accommodations are limited to “physical structures” by stating that those cases were about whether the ADA applied to the content of insurance policies, not websites. 

Second, the Court stated that those courts had “allowed the canon of noscitur a sociis to play too great a role in their analysis.”  This cannon of statutory construction states that a word is known by the company it keeps and is used to interpret ambiguous words.  The Court insisted that the application of this rule “ignores the maxim that a remedial statute should be read broadly” and runs counter to the “ADA’s intent, which Congress enacted ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.’” 

Third, the Court gave no weight to the dictionary definition of the word “place” in the phrase “place of public accommodation” because that definition, in the Court’s view, was “inconclusive.”

Fourth, the Court noted that Congress’ failure to amend the ADA to explicitly include websites should not be construed as Congress’s intention to exclude websites. To the contrary, the Court posited that the lack of legislative action could be interpreted as an understanding that no amendment is required to cover online-only businesses.

The bottom line is that the Court found the exclusion of online-only businesses from the ADA’s coverage inconsistent with the ADA’s mandate to ensure equal access for individuals with disabilities to businesses’ goods and services, noting that shopping via retail websites is not meaningfully different from shopping at physical stores. 

While we have yet to see other district courts in the Eighth Circuit weigh in on this issue, this decision may spark a trend of web accessibility lawsuits in Minnesota and the Eighth Circuit, as we have seen from plaintiff-friendly rulings in New York. 

Edited by: Minh N. Vu

By: Erin Chow, Lukas Huldi, and Michael Steinberg

Seyfarth Synopsis: In a dispute over workplace vaccination requirements, a federal district court in Oregon joined a growing trend in workplace vaccination litigation when it ruled that a plaintiff’s allegations of religious conflict with vaccination are sufficient to survive a motion to dismiss even when religious motives are coupled with secular concerns over vaccine safety.

Background & Holding

To get past a motion to dismiss and unlock the door to discovery, Plaintiffs asserting religious discrimination claims under federal or state law must allege facts suggesting that their religious beliefs or practices conflicted with a requirement of their employment.  But what beliefs count as “religious”?  The issue arises frequently in cases challenging termination for non-compliance with an employer’s COVID vaccine policy because employees’ claims of religious conflict are often interspersed with entirely secular concerns—such as fear of harm from the vaccine or philosophical opposition to mandates—that undermine the plaintiff’s claim that her objections were religiously motivated.  Many courts across the country have thus wrestled with the question of whether, and to what extent, an employee’s articulation of secular objections to vaccination alongside purported religious concerns may be fatal to surviving a Rule 12 motion.  In December 2024, the United States District Court for the District of Oregon entered the fray and concluded that a plaintiff may properly plead a sincere religious belief even when the plaintiff has also asserted secular beliefs.  French v. St. Charles Health Sys., Inc., No. 6:23-cv-01021-MTK, 2024 WL 5010502 (D. Or. Dec. 6, 2024).

In French, four plaintiffs sued their former employer, St. Charles Health System, Inc., for employment discrimination under state and federal law after their religious exemption requests from their employer’s vaccination policy were denied.

When one plaintiff initially sought a religious exemption to the vaccination requirement, she informed her employer that she believes her “body is a temple of the Holy Spirit” and that taking a vaccine that might be harmful to her body was inconsistent with that belief.  The plaintiff also expressed concerns over the vaccine’s potential side effects because it had not been tested for long.

St. Charles moved to dismiss under Rule 12(b)(6), arguing that the plaintiff had not adequately alleged that she held a bona fide religious belief in conflict with the vaccine mandate for two reasons: (1) her allegations about her faith were merely conclusory, and (2) her statements about potential side effects betrayed a secular concern devoid of legal protection.

The court first determined that the allegations were adequately detailed for this stage of the proceedings.  The plaintiff had explained in a letter to her employer that her beliefs were informed by her understanding of a specific passage of Scripture.  Moreover, courts tend to accept well-pleaded assertions of sincere religious belief, particularly at the motion to dismiss stage.

The court next turned to St. Charles’s assertion that the plaintiff’s beliefs were secular and could therefore not support a claim of religious discrimination.  It concluded that even though the plaintiff had asserted secular concerns about the vaccine’s safety, they did not detract from her religious motivation to avoid the vaccine.  The plaintiff’s reasons for avoiding the vaccine were still, as a whole, religious rather than secular; their overlap with her medical beliefs did not push them from the sphere of legal protection.  Thus, French’s religious discrimination claim survived her employer’s motion to dismiss.

Taking all the plaintiff’s factual allegations as true—as is required when considering a 12(b)(6) motion—the court concluded that she had plausibly alleged that she had a religious belief that conflicted with an employment duty because the vaccine mandate required a medical intervention inconsistent with her religious beliefs.

Practical Takeaways for Employers

The French decision joins a growing body of case law in vaccine litigation concluding that the articulation of secular beliefs amongst religious ones is not necessarily fatal to the employee’s religious discrimination claim at the pleadings stage.  For example, the Seventh Circuit found that an employee’s claim that “the [COVID] vaccines could pose a danger to [her] body in the form of blood clots or heart inflammation” and another employee’s claim that she did not “trust the information and long-term effects” of COVID vaccines because they were “developed in a rush” did not undermine their stated religious beliefs at the Rule 12 stage.  Passarella v. Aspirus, Inc., 108 F.4th 1005, 1007-08, 10 (7th Cir. 2024). 

In view of the relatively lenient standard that applies at the Rule 12 stage, employers should carefully evaluate the language of the particular request at issue in deciding whether a motion to dismiss on the ground that the plaintiff’s asserted objections to vaccination were secular rather than religious is a worthwhile endeavor.  Employers should note that even if an employee’s request for an exemption or accommodation to a COVID vaccine policy contains references to secular rationales like vaccine safety and efficacy, their employee may still show a religious conflict with their vaccine policy so long as the request sufficiently invokes a specific religious belief or practice.  Before rejecting such a request on account of its secular rather than religious nature, employers should seek legal advice.

Employers should also bear in mind that even though the existence of a sincere religious conflict may be a difficult issue to dispose of at the pleadings stage, summary judgment motions have had much more success.  Employers may still prevail at summary judgment by taking an assertive, proactive, and strategic approach in discovery to develop a record that demonstrates the absence of an employee’s religious conflict with an employer’s vaccine policies.

While the height of the pandemic recedes into the more distant past, litigation arising from employers’ pandemic-era policies persists, and the law in this arena continues to develop every day.  The Employment Litigation and Cultural Flashpoints teams at Seyfarth are steeped in these ongoing developments and stand ready to assist employers as they navigate the changing landscape.

Welcome to Decoding Appeals, where Seyfarth’s Appellate Team brings to in-house counsel our insights and expertise from the front lines of the appellate courts. Throughout this short video series, we break down the nuances of appellate advocacy, sharing tips and lessons we’ve learned to help companies’ in-house legal teams understand the complexities of the appeals process.

In this episode, Rob Szyba and Matt Catalano from Seyfarth’s Appellate Team discuss various facets of appellate arguments. Rob and Matt draw from their experiences arguing before various federal and state courts to compare various facets of an appeal. The discussion delves into issues such as determining whether to request oral argument, planning the leading points for argument, preparation and “mooting,” considerations for the day of the argument, and navigating a “hot bench.” 

By: Alysha Bhatia, Catherine Feldman and Elizabeth Levy

Seyfarth Synopsis: California law is complicated. When doing business in California, it helps to get the small things right – like mandatory postings. Keep reading for the signs California employers must post in the workplace

California Employers, Watch for Sharp Turns Ahead

If you operate a business in California, you know how difficult it is to keep up with ever-changing legal trends. California employers should review and refresh their workplace postings each year to keep up with legislative changes and annual minimum wage increases. Various California state agencies, including the Department of Industrial Relations (“DIR”), Civil Rights Department, Cal/OSHA, and local municipalities require employers to post information in an area frequented by employees where it may be easily read during the workday. Here are the signs you can’t ignore in California:

  1. California Minimum Wage: Employers must maintain a posting regarding the applicable state minimum wage, which increases practically every year. As of January 1, 2025, the minimum wage in California is $16.50/hour.
  2. Industrial Welfare Commission Wage Order: Employers must post the Wage Order applicable to their business type. The good news is that the DIR has published an index of businesses and occupations intended to help employers determine which Wage Orders are right for them.
  3. Payday Notice: Employers must also display a Payday Notice informing employees of their regular payday. Employers can use the template created by the state or create their own notice that clearly conveys to employees when and where they will receive their wages.
  4. Healthy Workplaces, Healthy Families Act of 2014 – Paid Sick Leave: All employers must maintain a posting alerting employees to their paid sick leave entitlement under the Healthy Workplaces, Healthy Families Act of 2014. California substantially amended its paid sick leave law in 2024, and the DIR published an updated poster. As we previously detailed, additional legislative paid sick leave changes went into effect January 1, 2025.  However, these changes are not captured in the current poster.
  5. Family Care & Medical Leave & Pregnancy Disability Leave: Employers with 50 or more employees (and public agencies) must maintain a poster advising employees of their rights to job-protected leave under the California Family Rights Act (though note that CFRA applies to employers with at least 5 employees!). The poster covers the reasons for use of CFRA leave, and employees’ right to pregnancy disability leave under California’s Fair Employment and Housing Act (FEHA).
  6. Emergency Contact Information: The DIR also requires California employers to display an emergency services contact sign. The sign must include phone numbers for fire, police, and medical services.
  7. Time Off to Vote:  Not less than 10 days before every statewide election, employers must post a notice advising employees of their right to take time off to vote.
  8. Safety and Health on the Job: Employers are required to display a poster that outlines basic requirements and procedures to comply with Cal/OSHA workplace safety and health standards. Additional health and safety related posters are required for employees who work with hazardous/toxic substances.
  9. Injuries Related to Work: Employers must post a notice that advises employees of their right to workers’ compensation benefits, how to apply for those benefits, and the contact information for the employer’s workers’ compensation insurance carrier (or a statement that the employer is self-insured).
  10. Whistleblower Protections: Employers must display a poster that explains the California whistleblower law protections, who is protected, and includes the telephone number of the whistleblower hotline maintained by the California Attorney General. The law requires that the poster be in lettering larger than size 14-point type.
  11. No Smoking: Employers must also have signs indicating  where smoking is prohibited and permitted on Company property. Additional information can be found on the DIR’s web site.
  12. Summary of Occupational Injuries and Illnesses: California employers with 11 or more employees must post Form 300A from February 1st to April 30th. This Form summarizes the total number of work-related injuries and illnesses that occurred in the previous year, including the total number of cases, days away from work, and types of injuries or illnesses. Other required occupational injury and illness forms are published on the Cal/OSHA website.
  13. California Law Prohibits Workplace Discrimination: This required poster informs employees of their rights under FEHA. It includes information on protections against discrimination and harassment based on protected categories including in part race, color, national origin, age, religion, sex, sexual orientation, gender identity, gender expression, disability, medical condition, marital status, and military or veteran status. As we previously wrote, effective January 1, 2025, the intersection or combination of protected characteristics are expressly protected from discrimination. This poster has been updated to include intersectionality.
  14. Transgender Rights in the Workplace: In addition to the general non-discrimination poster, California employers must maintain a poster that informs employees of their protections against discrimination, harassment, and retaliation based on gender identity or gender expression.
  15. Notice to Employees Regarding Unemployment Insurance (UI), State Disability Insurance (SDI), and Paid Family Leave (PFL): This required poster informs employees of their rights and benefits under California’s UI, SDI, and PFL programs. It includes links to the Employment Development Department where employees can obtain information and file benefit claims.
  16. Notice to Employees Regarding UI Benefits: This poster informs employees about their right to unemployment benefits, including who is eligible, how to file a claim, and the benefits available.
  17. Proposition 65: Proposition 65 mandates that employers with 10 or more employees provide “clear and reasonable” warnings to Californians about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. If employees may be exposed to chemicals on the Proposition 65 list at the workplace, employers may be required to post or otherwise distribute a warning.

Federal Workplace Posting Zone

In addition to California’s required postings, federal law requires employers to post certain notices.

  1. Occupational Safety and Health Act (OSHA) Job Safety and Health “It’s the Law”: Employers are required to display a poster informing employees of their rights to a safe workplace and to report work-related injuries, employers’ obligation to provide a workplace free of known hazards, and other OSHA protections.
  2. Federal Minimum Wage: Employers with employees covered by the Fair Labor Standards Act, must display a poster including the federal minimum wage.
  3. Equal Employment Opportunity Commission “Know Your Rights”: In addition to state anti-discrimination laws, employers are also required to have a poster that describes the federal protections against discrimination, harassment, and retaliation. The “Know Your Rights” poster also includes information regarding non-discrimination obligations for federal contractors.
  4. Federal Family and Medical Leave Act (FMLA): Employers must have a poster describing employee’s right to 12 weeks of job-protected leave for specific family, medical, and military-related reasons under the FMLA.
  5. The Uniformed Services Employment and Reemployment Rights Act: This required poster informs employees of their protections against discrimination based on their current or former military service status and their right to reemployment following military leave.
  6. Federal Employee Polygraph Protection Act: Under this Act most private employers must have a poster publicizing that employers are generally prohibited from requiring or requesting an employee or job applicant take a lie detector test as part of their pre-employment screening or during the course of employment. 

Additional Requirements Ahead

This list is not exhaustive. In addition to the California and federal required posters, there are additional required workplace notices for federal contractors, certain industries, specific types of employees, and employers whose employees face certain unique hazards. Local municipalities (particularly within California) have their own workplace posting requirements regarding things like local minimum wage, local paid sick leave and predictive scheduling ordinances.  

Workplace Solutions

With the overlapping layers of state and municipal laws and frequent changes to the law, it can be difficult to keep up with the latest requirements. Fortunately, Seyfarth’s California Employment Law Lookout Blog and Cal Peculiarities Blog are here to help. Sign up to stay up-to-date on the latest trends. We will keep you posted.

Welcome to Decoding Appeals, where Seyfarth’s Appellate Team brings you insights and expertise from the front lines of the courtroom. Throughout this short video series, we break down the nuances of appellate advocacy, sharing tips and lessons we’ve learned to help you navigate the complexities of the appeals process.

Back by popular demand, host Owen Wolfe is joined by Amanda Williams and Cat Johns, two former judicial law clerks, for another insightful discussion. This episode delves into the unique advantages law clerks bring to private practice, the critical role of oral arguments in appeals—including strategies for preparing for a hot or cold bench—and the art of drafting effective briefs. The speakers also examine how understanding the interplay between different court levels can influence case outcomes. Tune in for an engaging conversation that offers fresh perspectives on the appeals process and the value former clerks bring to the table.

The landscape of transgender employment laws is evolving globally, with various jurisdictions adopting laws that ensure inclusivity and non-discrimination in the workplace. This area is one of the most complex issues in employment law systems and has generated much controversy. Notwithstanding this, many global companies seek to support and promote the interests of women regardless of their gender identity or expression. This commitment aligns with the broader international trend of recognizing the rights of transgender individuals in the workplace. Transgender rights have been part of broader DEI initiatives for some time and are protected by law in some countries. There is an emerging body of law considering how these transgender legal protections interact with existing legal protections based on sex or gender. 

In this article we consider, in the international context, a recent decision of the Federal Court of Australia that has been noticed around the world. We have focused on selective jurisdictions for the purposes of comparison, but this issue is much wider than the limited number of countries referred to in this article.

The Australian Case

In Australia, the recent decision of Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 looked at the removal of a transgender woman (Ms. Tickle) from a female-only networking and dating app known as Giggle because, on a visual inspection, someone responsible for administration of the app had determined that she was a man (and therefore ineligible to participate). 

Ms. Tickle is a transgender woman whose female sex is recognized by an official updated Queensland birth certificate. 

The respondents’ conduct was found to be unlawful gender identity discrimination in the provision of goods and services, on the basis that: 

  • the app was imposing a requirement that users appeared to be (cisgendered) women, based on an examination of their profile photo 
  • while this requirement applied equally to everyone, it had the effect of disadvantaging transgender women, and 
  •  in the circumstances, the requirement was not reasonable. 

The respondents argued that Ms. Tickle was believed to be a male, meaning there was no discrimination because of gender identity, and that Ms. Tickle was denied access to the app based on her sex at birth, which they considered to be male. They also argued that the Giggle app should be considered as a ‘special measure’ to achieve substantive equality between men and women.

The Court rejected these arguments:

  • confirming prior cases that had found that a person’s sex is changeable and “sex can refer to a person being male, female, or another non-binary status” 
  • determining that the respondents had engaged in conduct in breach of the clear Parliamentary intent to prohibit discrimination on the ground of gender identity in the provision of goods and services
  • commenting that “It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination.” 

The respondents were ordered to pay $10,000 AUD plus Ms. Tickle’s legal costs. Their evidence in the case was that they had also made the decision to close down the Giggle app.

Australia

Under the Sex Discrimination Act 1984, gender identity has been a legally protected ground since 2013. However, the Australian Human Rights Commission has described this as the first case of its kind to go before the court. 

This case highlights the need to be cautious in Australia before implementing any measures intended to advance the interests of a group based on sex or gender, if such measures exclude persons with different gender identities. Unless the measure (and discriminatory impact) can be shown to be reasonable or come within a ‘special measures’ exemption to remedy certain types of existing sex-based inequalities, then there is a real risk this would be unlawful.

United States 

In the United States, the legal position on transgender protection is more nuanced. National (Federal) law bars discrimination based on sex under the Civil Rights Act of 1964. The United States Supreme Court has determined that this prohibition in extant law precludes drawing a distinction between cisgender and transgender individuals in the employment context. However, Courts continue to grapple with how this ruling applies to similarly worded prohibitions in education and public accommodation law, as well as to analyze its meaning under the United States Constitution. The Supreme Court’s reasoning in the employment context hinges on the rationale that treating a transgender female differently from a cisgender female is discriminatory sex stereotyping. However, in the employment context there remain many unanswered legal questions in the United States, including balancing the interests of religiously motivated private employers and employees with the interests of transgender and non-binary individuals. The Courts in the United States have not (at this stage) adopted the Australian position that measures to advance a group based on sex or gender cannot exclude persons with different gender identities.

United Kingdom

In the United Kingdom, the legal meaning of ‘sex’ is unclear due to a conflict between the definitions of ‘sex’ under two pieces of legislation: the Equality Act (“EA”) 2010 (the UK’s anti-discrimination legislation) and the Gender Recognition Act (“GRA”) 2004 (the UK’s gender change legislation). Under the GRA, if a person has a gender recognition certificate (“GRC”), the affirmed gender in that certificate is their gender for all purposes and is their ‘legal’ sex; whilst under the EA ‘sex’ (which is a characteristic that is protected from discrimination) is not clearly defined (i.e., it is ‘a reference to a man or a woman’). 

This conflict has resulted in particularly prominent legal challenges in Scotland as to whether ‘sex’ for the purposes of the EA means biological sex or recognizes the legal sex of people with a GRC. This conflict will take the national stage in November 2024 when the UK’s Supreme Court hears For Women Scotland’s appeal of a judicial review decision on the legal definition of the word ‘woman’ (this litigation was first lodged in the context of the Scottish government’s definition of ‘woman’ in 2018 legislation on gender representation on public boards). The UK Supreme Court’s decision should provide clarity on the extent to which sex under the EA is defined as biological or legal. 

Both pieces of legislation have also become the subject of increased political polarization. In April 2023, the UK’s Equality and Human Rights Commission recommended to the Minister for Women and Equalities that the government carefully consider redefining sex in the EA as biological sex; it said that this would bring greater legal clarity in eight areas (including single sex and separate sex spaces), but acknowledged that doing so would create ambiguity and potential disadvantage in three other areas.

In June 2024 (before its defeat in the General Election), the Conservative Party pledged to re-write the EA so that it defined ‘sex’ as biological sex, but a Labour frontbench MP said that guidance (rather than amending the EA) would be sufficient for clarifying the uncertainty here. In 2023, the UK’s Conservative government also rather controversially blocked the Scottish parliament from enacting legislation that would have made the Scottish process for obtaining a GRC easier. Conversely, the Labour Party’s 2024 election manifesto pledged to make it procedurally easier for transgender people to legally change their identity. We must wait to see how the Labour Party’s election to government in July 2024 impacts the ongoing discourse on this matter. 

From an employment perspective, UK employment tribunals have found that holding gender critical beliefs (i.e., the belief that sex is immutable and biological) can be a protected philosophical belief capable of protection from discrimination under the EA. However, the manifestation of such beliefs in behavior might not be protected depending on what those behaviors are and how they impact on the legal rights of others not to be discriminated against on the basis of their sex or gender reassignment.

Hong Kong

Legal developments around gender identity in Hong Kong have largely been premised on constitutional rights enshrined in the Basic Law (for example, the right to marry and the right to privacy), rather than any express prohibition of gender identity discrimination. Gender identity is not a protected characteristic under Hong Kong’s anti-discrimination legislative framework, which has only four ordinances covering sex, disability, race, and family status. 

The progression of gender identity rights in Hong Kong has been gradual and piecemeal, with limited case law to rely on. In 2013, a Court of Final Appeal case ruled that the interpretation of the Marriage Ordinance, which treats a transgender female (having undergone full sex reassignment surgery) as a “man,” was a violation of her constitutional right to marry by preventing her from marrying under her acquired gender. Following this, in 2017, the Hong Kong government set up an Inter-departmental Working Group on Gender Recognition to consider making legislative changes to reform transgender rights in Hong Kong. However, there has been little progress on this, which may be because gender identity remains a very divisive topic in Hong Kong. In February last year came a significant development in gender identity rights when the Court of Final Appeal ruled that the policy of barring transgender people from changing their gender markers shown on ID cards unless they underwent full sex reassignment surgery was unconstitutional because it violates the right to privacy. These judicial review decisions, while having no direct impact on the private sector, may have some indirect influence on how employers in Hong Kong, especially international employers, engage with, and treat transgender people.

Italy

In Italy, transgender persons have several legal protections and rights. Since 1982, transgender people in Italy have been allowed to change their legal gender. This process involves both medical and legal procedures. 

Additionally, discrimination based on gender identity in employment has been prohibited in Italy since 2003. This means that employers cannot legally discriminate against transgender individuals in hiring, promotion, or any other aspect of employment. 

Discrimination based on gender identity is prohibited in various contexts, including employment and public advertisement. The Italian Constitutional Court has ruled that non-binary individuals’ rights are also protected under the principles of social identity, equality, and the right to health as guaranteed by the Italian Constitution. 

Whilst these legal protections are significant, Italy still faces challenges in achieving full equality for transgender individuals, particularly in areas like healthcare access and social acceptance. Many transgender individuals in Italy still face challenges in the workplace. Surveys have shown that a significant number of LGBTQ+ workers, including transgender individuals, feel that their careers have been negatively impacted by discrimination.

Conclusion

The traditional legal approach of balancing competing interests creates particular difficulties when dealing with issues like the dignity of people or fundamental philosophical beliefs. Courts in every country are going to have to decide what of these interests are the most important.

By: Erin Dougherty Foley, Sara Eber Fowler, Taylor Iaculla, Ridhima Bhalla, and Hannah Sosenko

Seyfarth Synopsis: On January 1, 2025, employers in Illinois must be poised to comply with the looming changes to a host of existing and newly enacted employment laws. The changes reflect the state’s ongoing expansion of workers’ rights and addressing issues of employment discrimination, harassment, retaliation, and freedom of speech.

Illinois Human Rights Act Amendments

Period to File Complaints: On January 1, 2025, several amendments to the Illinois Human Rights Act (“IHRA”) will go into effect. Notably, the amendments more than double the time period for filing a charge of discrimination, harassment, or retaliation. Complainants will now have 2 years from the date of the alleged violation – instead of the current 300 days – to file complaints with the Illinois Department of Human Rights.

Expanded Protected Classes: The amendments also add new protected classes to the IHRA.

Family Responsibilities: Under the amended Act, employers are prohibited from discriminating against an employee, or prospective employee, based upon the employee’s “family responsibilities.” Family responsibilities include an employee’s actual or perceived responsibilities to provide personal care to a family member. Personal care includes:

  • activities related to meeting a covered family member’s basic medical, hygiene, nutritional, or safety needs are met;
  • providing transportation to a family member who is unable to meet such needs;
  • time spent providing emotional support to a covered family member with a serious health condition who is receiving inpatient or home care.

Reproductive Health Decisions: Similarly, the IHRA will prohibit discrimination on the basis of “reproductive health decisions.” In doing so, Illinois joins several other jurisdictions that prohibit discrimination on this basis. Reproductive health decisions include a person’s decisions regarding contraception, fertility care, assisted reproductive technologies, miscarriage management care, healthcare related to the continuation and or termination of pregnancy, and any pre-, intra-, or postnatal care.

Illinois Equal Pay Act Amendments

The Illinois Equal Pay Act will require that employers with 15 or more employees disclose “pay scale and benefits” in all job postings. The mandatory disclosures must include the wage or salary (or the wage or salary range), along with a general description of benefits and other forms of compensation, such as bonuses, stock options, and other incentives the employer plans to offer for the position. These pay disclosure requirements apply only to jobs that:

  • will be performed, at least partially, in Illinois; or
  • will be performed outside of Illinois if the hired employee will report to a supervisor, office, or other work site located in Illinois.

Another critical aspect is the emphasis on transparency regarding internal promotional opportunities. Employers are required to announce, post, or otherwise make known all opportunities for promotion to current employees no later than 14 calendar days after making an external job posting for the same position. Employers must also maintain records of job postings, pay scales, benefits, and wages for each position for at least five years. (Seyfarth’s prior update on these changes is available here.)

Worker Freedom of Speech Act

Reflective of the increased efforts limiting employers’ ability to conduct “captive audience” meetings, the Worker Freedom of Speech Act will prohibit employers from threatening to take or taking any adverse employment actions against employees for the following reasons:

  • declining to participate or attend an employer-sponsored meeting if the meeting is to communicate about religious or political matters;
  • as a means of inducing an employee to attend or participate in a meeting about religious or political matters; and
  • making a good faith report of a violation or suspected violation of the Act.

Among other topics, “political matters” includes the decision to join or support a labor organization.

If an employer violates the Act, the aggrieved employee has one year after the date of the alleged violation to bring a civil action. A prevailing employee may be awarded injunctive relief, reinstatement, back pay, reinstated benefits, including seniority, reasonable attorney’s fees, and costs. The Illinois Department of Labor may also investigate alleged violations, and may recover up to $1,000 for each violation per affected employee.

Whistleblower Act Amendments

Amendments to the Whistleblower Act alter the definitions of several key statutory terms, including “adverse employment action,” which will include actions that “a reasonable employee would find materially adverse.” An action is materially adverse when it “could dissuade a reasonable worker from disclosing or threatening to disclose” certain information, including information concerning their employer’s activity, policy, or practice the employee believes violates or poses a “substantial and specific danger to employees, public health, or safety.”

It likewise includes and broadly defines “retaliatory actions” that employers are prohibited from engaging in. For instance, unlawful retaliation includes:

  • taking action against employees who disclose or threaten to disclose information to any supervisor, principal officer, board member, or supervisor in an organization;
  • contacting, threatening to contact, or otherwise reporting/threatening to report an employee’s suspected or actual citizenship or immigration status; or
  • intentionally interfering with a former employee’s employment.

The amendments also include stricter penalties, providing aggrieved individuals with a private right of action in which they could recover up to $10,000 in liquidated damages as well as a $10,000 penalty, in addition to fees and costs. Likewise, the Attorney General is empowered to seek remedies under the Act and may request a civil penalty of up to $10,000 for each repeat violation within a 5-year period.

Overall, the amendments expand employees’ statutory protections under the Act due to the broadly defined statutory language. However, the Act now expressly provides an additional defense for employers to defeat claims provided that the alleged retaliatory action was based solely on grounds other than the employee’s statutorily protected conduct.

Child Labor Law of 2024

The Child Labor Law of 2024 repealed the previous Illinois child labor law and covers minors under the age of 16. The law specifies the allowable work hours and times for minors, such as not working more than 18 hours while school is in session (down from 24 hours) or not working more than 40 when school is out of session, but also provides certain exceptions. The law further clarifies that civil and criminal penalties can be imposed for violations and requires employers to obtain and maintain on the premises an employment certificate authorizing a minor’s work. Other notable aspects of the new law include:

  • ensuring all minors are supervised by an adult 21 years or older while the minors are working;
  • minors 13 years of age or younger cannot work in any occupation at any workplace unless they satisfy an exemption under the Act;
  • an expansion of prohibited occupations for minors to work in, such as in any cannabis shops, barber, cosmetology, esthetics, hair braiding, and nail technology services requiring a license, or any other occupation determined by the Director to be hazardous.

Personnel Records Review Act Amendment

The recent amendment impose new obligations on employers, including the method for requesting personnel records and the intervals in which requests may be made.

Request Requirements:  Requests need to be made to a person responsible for maintaining the employer’s personnel records and must identify the records an employee is requesting. The employee must specify whether they are requesting to inspect, copy, or receive copies of the records; if they elect to request copies, they must specify whether they want electronic or hard copy formats.

What Can Be Requested: The Amendment expands the types of records an employee may request. This now includes:

  • any employment-related contracts or agreements that the employer maintains are legally binding on the employee;
  • any personnel documents used to determine an employee’s qualifications for benefits and compensation;
  • any employee handbooks that the employer made available to the employee or that the employee acknowledged receiving;
  • any written employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, discharge, or other disciplinary action.

Additional Exception: The Amendment adds an exception to personnel records that must be disclosed, clarifying that the right to inspection does not apply to an “employer’s trade secrets, client lists, sales projections, and financial data.”

Wage Payment and Collection Act Amendment

Amendments to the Wage Payment and Collection Act change employers’ recordkeeping obligations. Employers will soon be required to retain copies of pay stubs for a minimum of three years after the date of payment, regardless of whether an employee’s employment ends during that period. Employers will also need to provide current or former employees with copies of their pay stubs within 21 days of a request. However, employers will not be required to approve more than two requests in a calendar year.

The amendments clarify the meaning of a “pay stub” under the Act, which includes “an itemized statement or statements reflecting an employee’s hours worked, rate of pay, overtime pay and overtime hours worked, gross wages earned, deductions made from the employee’s wages, and the total of wages and deductions year to date.”

For employers who provide electronic pay stubs that employees cannot access for a year following their separation, they must offer to provide, upon an employee’s separation of employment, a record of all pay stubs for the past year. Notably, employers must document this offer in writing, noting (1)the date the offer was made; and (2) the employee’s response.

Employers who fail to furnish a paystub or otherwise comply with these amendments will be subject to a civil penalty of up to $500 per violation.

Right to Privacy in the Workplace Amendments

As we recently reported, Illinois’s amended Right to Privacy in the Workplace Act reaffirms that Illinois employers may voluntarily use E-Verify systems, provided that the employer follows the requirements outlined in the Act. There is no ban or restriction against the voluntary use of E-Verify in Illinois, though the amendments prohibit an employer from imposing work authorization verifications (or re-verifications) beyond existing federal requirements. Moreover, the amendments impose additional obligations upon employers in an effort to enhance worker protections.

Notice Requirements:

  • Inspections: Come January 1, 2025, employers must inform employees if their Form I-9 documentation will be inspected. Specifically, employees must be notified of any inspection within 72 hours of receipt, and where appropriate, employee representatives should also be notified.
  • Discrepancies Known to Employers: When an employer receives notification from a federal or state agency of a discrepancy as it relates to work authorization, employers must provide written notice of the issue to the employee. Notice should be given via hand-delivery if possible, or alternatively by mail and email within five business days. The notice must include:
    1. an explanation of the determination;
    2. the time period for the employee to notify the employer if they wish to contest the determination;
    3. the time and date of any meeting with the employer or with the inspecting entity; and
    4. notice that the employee has the right to representation.
    • Discrepancies Made by Inspecting Entities: Employers must also notify employees of discrepancies or suspect document determinations made by inspecting entities, such as Homeland Security Investigations. Once the inspection is completed, employees should have an opportunity to resolve any verification discrepancies. Employers must notify the employee within 5 business days (or sooner if federal law or a collective bargaining agreement requires). The notification must be  hand delivered. If hand delivery is not possible then notice must be sent by mail and email.

    The Health Care Worker Background Check Act Amendments

    Comprehensive Community Mental Health Centers certified by the Department of Human Services (“DHS”) will now be subject to the Act’s requirements. Among other requirements, such employers must now terminate their employees if they are found to have:

    • A disqualifying criminal conviction unless a waiver has been granted by the Illinois Department of Public Health;
    • substantiated findings of physical or sexual abuse, neglect or financial exploitation;
    • indicated findings of abuse or neglect reported by the DCFS Central Register/Child Abuse and Neglect Tracking System (CANTS) unless there is a waiver granted by DHS; or
    • their name is listed on the Healthcare and Family Services (“HFS”) Office of the Inspector General Sanction List as not authorized for employment unless their employment is approved by HFS.

    Non-Competes and Non-Solicitation Provisions

    On August 9, 2024, Illinois declared non-compete and non-solicitation provisions entered into after January 1, 2025, as unenforceable if the provision is “likely to result in an increase in cost or difficulty for any veteran or first responder seeking mental health services.”

    It also deemed all non-compete and non-solicitation provisions as “void and illegal” for any person employed in construction, regardless of the terms of any applicable collective bargaining agreement.

    Changes to Armed Forces and Uniform Services Definition

    Illinois expanded the definition of armed forces or uniformed services to specifically include members of the United States Space Force.

    Next Steps for Employers: Employers should review existing applicable policies (including retention protocols) to ensure compliance with these Illinois updates, and train relevant HR, business, and management personnel on these new requirements as we head into 2025.

    By: Daniel I. Small, Howard M. Wexler, and Robert S. Whitman

    The most wonderful time of the year often portends many legal hiccups for the unassuming business.  And this year is no different.  As the holiday season approaches and we turn the calendar to 2025, New York employers should pay attention to several legal and regulatory changes taking effect in 2025 and beyond.

    Wage & Hour Changes

    As has become an annual tradition, New York employers should keep in mind the scheduled minimum wage increases set to go into effect on January 1, 2025 (and beyond). 

    Minimum Wage Increases

    As outlined here, New York’s Governor Hochul signed legislation adopting a three-year period of annual increases to the state’s minimum wage rates, followed by a market-based approach to adjust minimum wage rates moving forward. 

    Effective January 1, 2025, all New York employers will face the following rate increases:

    Effective DateNew York City, Long Island, and WestchesterRemainder of New York State
    January 1, 2025                      $16.50$15.50
    January 1, 2026                      $17.00$16.00

    As of January 1, 2027, subsequent minimum wage increases will be tied to the three-year average of a regional consumer price index, such that economic conditions could prevent a rate increase for a particular year.  The New York Department of Labor (“NYDOL”) is tasked with monitoring the statewide economy and adjusting the minimum wage accordingly.  If the NYDOL determines a rate increase is appropriate, it will need to post the adjusted rate no later than October 1 of the year prior to the planned increase to give employers sufficient time to prepare.

    Overtime Exemption Salary Threshold Increases

    Per NYCRR § 142-2.14, employees who work in an executive or administrative capacity and who are paid a salary not less than the thresholds set by state regulations may be exempt from the state’s overtime pay requirements.    

    As discussed here, beginning January 1, 2025, the following salary thresholds for the “executive” and “administrative” exemptions will take effect:

    Effective DateNew York City, Long Island, and WestchesterRemainder of New York State
    January 1, 2025                      $1,237.50/week($64,350.00/year)$1,161.65/week($60,405.80/year)
    January 1, 2026                      $1,275.00/week($66,300.00/year)$1,199.10/week($62,353.20/year)

    As a reminder, New York does not have a higher salary threshold than federal law with respect to an “employee employed in a bona fide professional capacity.”  As such, the professional exemption under New York law will continue to be subject to the federal professional exemption salary threshold, currently set at $684.00 per week ($35,568.00 per year) after a federal judge recently rejected the Biden Administration’s attempt to increase that threshold (see here).

    New York’s Paid Prenatal Leave Law

    Earlier this year, New York State passed a first-in-the-nation paid prenatal leave for covered employees effective January 1, 2025. The State has just issued administrative guidance to help employers navigate the new requirements.

    As outlined here and here, the paid prenatal personal leave (“PPPL”) entitlement program requires all employers to provide at least 20 hours of paid prenatal personal leave each year in addition to the existing statutory paid sick leave under the New York State Paid Sick Leave Law.  This means that eligible employees will soon be entitled to use up to a total of either 60 hours or 76 hours (depending on employer size) of paid leave for various medical needs.

    Eligible employees may use PPPL in hourly increments to receive health care services during their pregnancy or related to a pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to pregnancy.  The guidance underscores that PPPL can be used only by the pregnant employee and not by a pregnant individual’s spouse, partner, or other support person. 

    The guidance further clarifies that: (i) the 20-hour entitlement is not accrued, but rather frontloaded each year on January 1, or upon the employee’s date of hire, whichever is later; (ii) there is no waiting period to use PPPL, meaning eligible new hires can use PPPL for a covered absence immediately without satisfying a minimum amount of time worked before accessing the PPPL; and (iii) PPPL is a separate benefit from other leave policies and laws, and that the 20 hours of PPPL are in addition to any other available leave options.

    Sunset of COVID Paid Sick Leave

    New York was one of the first states to adopt paid sick leave specific for COVID-19 purposes. (See here and here for our prior alerts on the topic.)  The New York State COVID-19 Emergency Leave Law currently provides employees with paid leave when subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. The amount of paid time off to which employees are entitled under this mandate has changed over time in light of the CDC ending its recommended five-day isolation period following a positive COVID-19 test. 

    However, as expected, this this leave entitlement will end effective July 31, 2025.  However, employees may continue to use other qualifying paid leave, such as New York Paid Sick Leave, for COVID-19-related reasons.

    Retail Workplace Safety Law

    As outlined here, Governor Hochul in September 2024 signed legislation mandating the establishment of a workplace violence prevention policy, notice and training program, and the installation of panic buttons in the workplace for certain retail employers. 

    But these components do not all share the same effective date and some coverage details differ as well.  For example, while the written policy, notice, and training requirements will all take effect on March 4, 2025, the panic button requirement does not take effect until January 1, 2027.  And whereas the policy, notice, and training requirements apply to all employers employing 10 retail employees as defined under the statute, the panic button requirement is applicable only to employers with 500 retail employees nationwide. 

    As of today, the NYDOL has still not published any further guidance at this time leaving some employers in the dark regarding the scope of coverage, particularly the intended meaning of the terms “sells consumer commodities at retail” and “primarily” in the statutory definition of “retail store.”  We nonetheless expect the NYDOL to issue guidance prior to the March 4, 2025 effective date for some of these requirements.

     Outlook

    Employers operating in New York should remain attentive to the changing legal landscape as we begin a new calendar year. New York employers should consider reviewing their policies and procedures for potential necessary changes to ensure compliance.  

    For additional information and guidance, we invite you to join us at our upcoming Breakfast Briefing, “New York and New Jersey Employment Law: 2024 in Review and What’s to Come in 2025,” on January 9, 2025. You can view the program details and register here.

    Tuesday, December 17, 2024
    1:00 p.m. to 2:00 p.m. Eastern
    12:00 p.m. to 1:00 p.m. Central
    11:00 a.m. to 12:00 p.m. Mountain
    10:00 a.m. to 11:00 a.m. Pacific

    Register Here

    About the Program

    Join us for the final installment of Seyfarth’s 2024 Trade Secrets Webinar Series, where our panel will provide practical guidance on navigating non-compete agreements, safeguarding trade secrets, and understanding critical regulatory developments impacting employers across the United States. This session will highlight key updates from the upcoming release of our 2024-2025 Edition of Seyfarth’s 50-State Non-Compete Desktop Reference—your go-to resource for understanding non-compete laws nationwide.

    With significant federal and state changes, including updates from the FTC, NLRB, and new wage threshold requirements, this webinar is essential for employers looking to remain compliant, mitigate risks, and protect their business-critical assets. What to expect:

    • Federal Updates: What employers need to know about changes under the Trump administration, including potential impacts on non-compete enforcement.
    • Regional Trends: A comprehensive review of state-level developments in non-compete laws.
    • Regulatory Outlook: Insights into the Federal Trade Commission (FTC) and National Labor Relations Board (NLRB) regulatory landscapes and what to anticipate in 2025.
    • Wage Threshold Notices: Understanding the implications of wage threshold requirements on non-compete agreements.
    • Protecting Your Company with Non-Competes: Best Practices for Safeguarding Valuable Assets Amid Heightened Scrutiny
    • Interactive Q&A Session: Engage with our panel and get your pressing questions answered.

    Exciting news! Our highly anticipated 50-State Non-Compete Desktop Reference is launching soon. Stay ahead with this essential resource—subscribe to our Trade Secrets mailing list today to ensure you’re among the first to receive it!

    Speakers

    Kate Perrelli, Partner, Seyfarth Shaw LLP
    Justin Beyer, Partner, Seyfarth Shaw LLP
    Jesse Coleman, Partner, Seyfarth Shaw LLP
    Joshua Salinas, Partner, Seyfarth Shaw LLP

    Register Here

    If you have any questions, please contact Sadie Jay at sjay@seyfarth.com and reference this event.

    Seyfarth Synopsis: While motions for summary judgment are usually tricky to obtain in fact-laden employment cases alleging discrimination, failure to accommodate, and failure to engage in the interactive process, the Court of Appeal recently handed the employer a complete victory when it affirmed summary judgment on all causes of action on just such a case, providing a reminder on the essentials of such claims, as well as a roadmap for employers on achieving dispositive motion victories in such cases.

    In Miller v. California Dept. of Corrections and Rehabilitation, 105 Cal. App. 5th 261 (2024), a California Department of Corrections and Rehabilitation (“CDCR”) correctional officer who had been placed on an unpaid leave of absence filed suit against the CDCR alleging disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and retaliation. The trial court granted CDCR’s motion for summary judgment, and the correctional officer appealed. The Court of Appeal, Fourth District, independently reviewed summary adjudication of each cause of action de novo, and affirmed.

    Back to the Essentials on Disability Discrimination

    The Court found that CDCR had met its initial burden on summary judgment on the disability discrimination claim by showing that plaintiff’s permanent restrictions were incompatible with her essential duties, and that CDCR was not prohibited from taking adverse employment action against the correctional officer since she could not perform her essential duties. This is because disability cases focus on whether the employee is able to perform their essential functions. Gov. Code Section 12940(a) specifically “exclude[es] from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential duties.” Green v. State of CA, 42 Cal. 4th 254, 262 (2007). In this case, the employer’s motives for any alleged adverse employment action becomes subject to scrutiny only after the employee meets this burden to show the ability to perform the essential functions of the job, with or without reasonable accommodation. As the correctional officer failed to do so, the employer’s motivations were never subject to scrutiny.

    Specifically, the correctional officer failed to present any evidence to dispute the essential duties of a correctional officer or to suggest that her restrictions would permit her to perform her essential duties. Instead, she attempted to confuse the issues by directing the Court’s attention to evidence related to CDCR’s purported failure to engage in the interactive process and failure to provide her with a reasonable accommodation. However, the Court was not fooled, holding that the refusal to participate in the interactive process or refusal to provide a reasonable accommodation “do not constitute ‘adverse employment actions’ in the context of a claim of discrimination.” Brown v. Los Angeles Unified School Dist., 60 Cal. App. 5th 1092, 1106 (2021). Instead, they represent independent causes of action subject to different elements of proof, and an employer may be liable for either of those claims without being liable for discrimination.

    Disability Retirement Under CalPERS Is Not A Reasonable Accommodation

    CDCR submitted no evidence to show that from May 2018 through November 2018, it identified medical demotion to an alternative position as a potential accommodation for the correctional officer’s permanent work restrictions. The correctional officer consented to a medical demotion, and the CDCR proceeded to identify and offer her an alternate position, after which the officer declined to accept it. The Court found that this was evidence that a reasonable accommodation within plaintiff’s permanent restrictions was offered and refused.

    With respect to plaintiff’s mental disability, CDCR presented evidence that she was mentally incapable of working in any capacity beginning in January 2019. This was evidence that there was no accommodation available that would have permitted the officer to work in any position with CDCR as of January 2019. As a result, CDCR placed Plaintiff on an unpaid leave of absence. The Court found that CDCR had met its initial burden on summary adjudication.

    Plaintiff argued that CDCR could have, but refused to provide her with an alternative accommodation in the form of disability retirement under the California Public Employees’ Retirement System (“PERS”). The Court found that this was not a reasonable accommodation within the meaning of Gov. Code Section 12940(m)(1) because the purpose of a disability retirement under PERS is not to facilitate a disabled employee’s eventual return to work, but to permit the disabled employee to be “replaced by more capable employees” (§ 20001) while alleviating “the harshness that would accompany the termination of an employee who has become medically unable to perform his duties.” Haywood v. American River Fire Protection Dist., 67 Cal. App. 4th 1292, 1304 (1998). Thus, the Court found that from the employee’s perspective, such a separation is virtually indistinguishable from a dismissal. The Court noted that the “FEHA does not obligate an employer to choose from the best accommodation or the specific accommodation a disabled employee or applicant seeks” as long as the accommodation chosen is reasonable. Raine v. City of Burbank, 135 Cal. App. 4th 1215 (2006). Thus, adopting the interpretation that a disability retirement constitutes a reasonable accommodation would permit an employer to comply with the mandate of Section 12940(m)(1) by separating and replacing the disabled employee even if other reasonable accommodations might also be available that would permit that employee to return to work. The Court found that such an outcome would be directly contrary to the purpose of that statute, which is to encourage employers to pursue all reasonably available means to facilitate a disabled employee’s return to work.

    Employee Must Identify A Reasonable Accommodation That Was Available During The Interactive Process

    The Court also found that CDCR had satisfied its initial burden on summary adjudication on the claim for failure to engage in the interactive process by showing that reasonable accommodations were offered where available, and to show that no reasonable accommodation was available with respect to the officer’s mental disability.

    In opposition, the plaintiff failed to produce any evidence to show that the accommodations offered were unreasonable and failed to produce any evidence of an available reasonable accommodation that could have been offered in response to her mental disability. Instead, the officer argued that CDCR’s actions during the interactive process were conducted in bad faith, with ineffective communication, that CDCR failed to affirmatively assist the officer in identifying more potential accommodations, placed the officer in an informational disadvantage, and that CDCR had failed to seriously consider the extent of available accommodations.  The Court held that regardless of how deficient an employer’s participation in the interactive process may be, “[u]nless, after litigation with full discovery, [an employee] identifies a reasonable accommodation that was objectively available during the interactive process, he has suffered no remedial injury from any violation of Gov. Code Section 12940(n).” Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1019 (2009).

    Becoming Disabled Is Not A Protected Activity

    Finally, the Court affirmed summary adjudication on the claim for retaliation where the correctional officer alleged that CDCR engaged in retaliation by subjecting her to adverse actions of being placed on an unpaid leave as a result of her becoming involuntarily disabled.  The Court held that while a request for a reasonable accommodation is a protected activity, the involuntary act of becoming disabled and the act of notifying one’s employer of one’s medical status, even if such medical status constitutes a disability under the FEHA, does not constitute protected activity.