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Today, most Americans live in a jurisdiction that has enacted a “ban-the-box” law (also known as a “fair chance” law).  Ban-the-box laws restrict employers from inquiring about an applicant’s criminal background at various stages of the hiring process.  The purpose of these laws are to enable an ex-offender to display his or her qualifications in the hiring process before he or she must disclose a criminal record.  In fact, the origin of the laws’ colloquial name is the “box” that initial job applicants must check if they have a prior conviction.  These laws benefit an estimated 70 million people in the United States (or almost one in three U.S. adults) who have prior arrests or convictions.

Currently, there is no federal ban-the-box law generally applicable to private sector employers.  However, on December 20, 2019, President Trump signed into law the Fair Chance Act (also known as the Fair Chance to Compete for Jobs Act of 2019) which prohibits federal agencies and government contractors from inquiring about an applicant’s criminal history before making a conditional employment offer, unless a specified exception applies.  The law includes exceptions for law enforcement and national security positions that require access to classified information, and where an employer is legally obligated to conduct a criminal background check before making a conditional employment offer.
Continue Reading North Carolina Also Bans-The-Box

We’ve previously provided general guidance on the challenges facing students, parents and employers this fall.  This is the first week of remote school for all Chicago Public School students, and this post focuses on what employers doing business in Illinois need to consider.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?


Continue Reading Back to School Cheat Sheet for Employers: Illinois

Chicago, the nation’s third largest school district, reversed course and said it would begin the academic year remotely in September.  This shift leaves New York City as one of the only major school systems still planning to offer in-person classes this fall.  Like the spring school shutdown, continued remote learning presents many challenges for working parents.  Many wonder how they can put in full workdays without sacrificing their child’s education, job performance, and sanity.

Rather than ignoring the challenges for employees with school-aged children, employers can proactively act to help their parent employees and mitigate their own legal risks.  Employers are facing employment lawsuits related to the COVID-19 pandemic on a number of fronts and childcare challenges will certainly be an issue.  For example, one recently filed lawsuit by a California woman against her former employer alleges “she was fired because her young children were making noise during business calls while she was working from home because of the coronavirus pandemic.”


Continue Reading Getting a Passing Grade When Office + School = Home

In May, the Equal Employment Opportunity Commission (“EEOC”) announced that FedEx Ground Package System, Inc. (“FedEx”) will pay $3.3 million dollars and provide programmatic relief to resolve a disability discrimination charge against the company.

Allegations against FedEx

In its Complaint (Equal Employment Opportunity Comm’n v. FedEx Ground Package Sys., Inc., 15-cv-00256 (Western District of Pennsylvania, February 25, 2015) the EEOC alleged that FedEx violated the Americans with Disabilities Act (“ADA”) by discriminating against deaf and hard-of-hearing individuals who applied for and/or worked in the package handler positions with the company.  To be hired for such positions, applicants must be at least eighteen years old and pass a criminal background check.  Applicants attend a mandatory sort-observation tour (where they see an active package handling shift, observe loading and unloading delivery vehicles, the conveyor systems, scanning, sorting, and the routing of packages), and participate in an interview.


Continue Reading EEOC Delivers Hefty Fine for Disability Discrimination

On May 20, 2020, Chicago’s COVID-19 Anti-Retaliation Ordinance (the “Ordinance”) came into effect.  The Ordinance bars employers from terminating or demoting employees who take time off for reasons related to COVID-19, including taking time off to care for a family member with COVID-19.  Noncompliance with the Ordinance can be costly, including private litigation and enforcement action by the city.  Employees can win up to three times the wages lost due to their termination plus actual damages and attorney fees.  In an enforcement action, Chicago could impose fines of $1,000 per day per violation.  The Ordinance provides employers with an affirmative defense if it relied upon a reasonable interpretation of the public health order at issue and, upon learning of the Ordinance violation, cured the violation within 30 days.

Continue Reading Chicago Approves Landmark COVID-19 Anti-Retaliation Ordinance

As Illinois (with the exception of Chicago) reopens today, Illinois employers should be aware of Governor Pritzker’s released Phase 3 Guidelines for Reopening Business and Returning People to Work Safely.  The guidelines are designed to help businesses and employers to implement safety measures and bring some employees back to work.  The guidelines are organized by industry and include toolkits with signage, training checklists, and other resources to ensure business and activities are conducted in accordance with the latest public health recommendations.  The guidelines are further broken down into “minimum guidelines” and “encouraged best practices.”  The following minimum guidelines are uniform across all industries:

  • All employees who can work from home should condition to do so;
  • Employees should wear cloth face coverings over their nose and mouth when within 6 feet over others;
  • Social distance of at least 6 feet should be maintained between non-household individuals unless participating in activities permitted under Phase III guidelines;
  • Employers should provide hand washing capability or sanitizer to employees and customers (if applicable);
  • Frequent hand washing by employees, and an adequate supply of soap/paper towels and/or disinfectant/hand sanitizer should be available.


Continue Reading Illinois Entering Phase 3 Of Return To Work

Illinois and other states are now on the second week of the extraordinary executive orders colloquially referred to as the “shelter in place” or “stay-at-home” orders.  Illinois’ version, COVID-19 Executive Order 8 (the “Order”), was issued by Governor J.B. Pritzker on March 20, 2020, is effective through at least April 7, 2020, but will likely be extended.  The requirements of the Order, and the practical takeaways from it for employers struggling to remain open for business and protect their workforces, are instructive to employers in any jurisdiction. A Kelley Drye Client Advisory addressing compliance with Stay-at-Home Orders is located here.

As in other states, the Order generally requires all individuals living in Illinois to stay at home unless they are leaving their home for Essential Activities, Essential Government Functions, or to Operate Essential Businesses and Operations. As summary of Essential Businesses and Operations is contained below.


Continue Reading Lessons from Illinois’ Shelter in Place Orders

Last week, workers at Cresco Labs, one of Illinois’ largest cannabis companies, voted to join the Local 881 chapter of the United Food and Commercial Workers (UFCW).  The vote, conducted by the National Labor Relations Board just two weeks after adult recreational-use sales began in the state, is the first by Illinois cannabis workers.

Cresco currently employs around 130 employees, but the vote will affect only about 100 of those workers.  Because Cresco’s cultivation employees are already covered under federal labor laws for agricultural workers, only non-cultivation personnel are eligible to join the bargaining unit, such as those handling packaging, transportation, extraction and infusion, and front-end staff.

Cresco Labs has also drawn the attention of major politicians in Illinois and across the country. Democratic presidential candidate Senator Bernie Sanders, for example, mentioned the Cresco Labs workers in a tweet last week, encouraging Cresco employees to vote for unionization and vowing to help double union membership across the country should he get elected as president.


Continue Reading Workers at Illinois-based Cannabis Company Unionize

In June 2019, the Illinois’ Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) was signed into law, legalizing the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020.  In a previous Labor Days blog post, we discussed the likely impact of this law on employers in Illinois.  In short, the Cannabis Act (1) permits employers to establish non-discriminatory, “reasonable zero tolerance or drug free workplace policies” that prohibit employees from using or being under the influence of cannabis at work, (2) allows employers to discipline employees for using or being under the influence of cannabis at work and for other violations of these “reasonable zero tolerance or drug free workplace policies,” and (3) insulates employers against liability for taking the aforementioned actions, as long as there existed a good faith basis for the employer to believe that the disciplined employee was under the influence of cannabis.  Cannabis Act at § 10-50.

Despite these provisions, the Cannabis Act, as originally enacted, left employers with several unanswered questions.  One of the key questions was whether employers would face liability for adverse employment actions based solely on a positive marijuana test, including refusing to hire a job applicant who tests positive for marijuana use.  The challenge with testing employees and prospective employees for marijuana use is that under Illinois’s Right to Privacy in the Workplace Act, an employer may not discriminate against an individual who uses “lawful products off the premises of the employer during nonworking and non-call hours.”  820 ILCS 55/5(a).  Adding to the confusion is the fact that the Right to Privacy in the Workplace Act referred back to the Cannabis Act’s provisions allowing employers to enforce reasonable drug-free workplace provisions.


Continue Reading Illinois Cannabis Law, Amended: What Employers Should Know

Last week, the Chicago City Council passed the Chicago Fair Workweek Ordinance (“the Ordinance”), which requires employers to give workers early notice of their schedules or face penalties if they change shifts without sufficient notice.  For employers, this may present an administrative challenge, but employers should be prepared to address this national trend.  New York City, Philadelphia, Seattle, San Francisco, Oregon, and the District of Columbia have already enacted laws to protect worker schedules and limit employer discretion in adjusting employee schedules. Mayor Lightfoot is expected to formally sign the bill and it will subsequently be effective July 1, 2020. The highlights follow:

Who’s Covered?

  • The Ordinance requires employers in any “Covered Industry,” which includes building services, healthcare, hotels, manufacturing, retail, or warehouse services with more than 100 employees globally (250 in the case of non-profits) with at least 50 covered employees, to provide certain protection around the scheduling of an employee’s shifts.
  • For restaurants, the law is applicable for businesses with 30 locations globally and at least 250 employees.
  • The Ordinance applies to all employees, within Covered Industries, who make less than $26 per hour or receive an annual salary of under $50,000.


Continue Reading Predictive Scheduling for Chicago Too.