Greensfelder Officer Scott Cruz authored an article on the “quiet quitting” phenomenon that has been permeating workplaces nationwide in the wake of the COVID-19 pandemic. The article, titled “How to Address and Remedy Quiet Quitting in the Workplace,” was published in the fourth-quarter edition of The Illinois Manufacturer.

As noted in the article, “quiet quitting” describes workers who scale back their work efforts, or “check out,” and do not push to go the extra mile without some kind of recognition or compensation. For employers to protect their businesses, it is critical that they “recognize the signs of a budding quiet quitter and immediately take steps to prevent and address it,” Cruz wrote.

Read the full article in The Illinois Manufacturer.

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a new poster titled “Know Your Rights: Workplace Discrimination is Illegal” that all covered employers are required to display in the workplace.

This updates and replaces the EEOC’s previous “Equal Employment Opportunity is the Law” poster. Covered organizations include most private employers, state and local government employers, educational institutions, unions, and staffing agencies.

Links to the poster and electronic posting can be found at https://www.eeoc.gov/poster. English and Spanish language versions are available.

The poster covers information about discrimination based on:

• Race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, and religion
• Age (40 and older)
• Equal pay
• Disability
• Genetic information
• Retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

The new poster should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. If employers have employees working remotely, the EEOC encourages them to post the new notice digitally on their website. Covered employers are subject to fines for noncompliance. 

Employers with questions about how this new requirement affects them may contact a member of Greensfelder’s Employment & Labor practice group to discuss.

Amendments Cover Pregnancy or Adoption-Related Losses, Deaths of Additional Family Members

On June 9, 2022, Illinois Gov. J.B. Pritzker signed into law amendments to the Child Bereavement Leave Act, which take effect January 1, 2023. Among other notable changes, the amendments change the name of the Child Bereavement Leave Act to the Family Bereavement Leave Act, expand the definition of “covered family member,” and expand unpaid bereavement leave time requirements for eligible employees to cover pregnancy loss, failed adoptions, unsuccessful reproductive procedures, and other diagnoses or events impacting fertility and pregnancy.

The definition of a covered “employer” and “employee” remain the same. Accordingly, covered employers remain those with 50 or more employees and, thus, are subject to the provisions of the Family and Medical Leave Act (FMLA). Covered employees remain those who have been employed by a covered employer for at least 12 months, have worked for a covered employer for at least 1,250 hours, and work at a location where the covered employer employs 50 or more employees within 75 miles. 

Under the act, covered employers must provide covered employees with at least two weeks (10 working days) of unpaid bereavement leave to be absent from work to:

• Attend the funeral or alternative to a funeral of a covered family member;
• Make arrangements necessitated by the death of a covered family member; and
• Grieve the death of a covered family member.

The act now defines a “covered family member” to be an employee’s “child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.”  A “domestic partner” means “(1) the person recognized as the domestic partner of the employee under any domestic partnership or civil union law of a state or political subdivision of a state; or (2) an unmarried adult person who is in a committed, personal relationship with the employee, who is not  domestic partner as described in paragraph (1) to or in such a relationship with any other person, and who is designated to the employee’s employer by such employee as that employee’s domestic partner.”

Covered employers also must now provide covered employees with at least two weeks (10 working days) of unpaid bereavement leave to be absent from work due to:

• miscarriages;
• unsuccessful rounds of intrauterine insemination or of assisted reproductive technology procedures (defined as “a method of achieving a pregnancy through an artificial insemination or an embryo transfer and includes gamete and embryo donation,” but “not pregnancy achieved through sexual intercourse”);
• failed adoption matches;
• adoptions not finalized due to being contested by another party;
• failed surrogacy agreements;
• diagnoses that negatively impact pregnancy or fertility; and
• stillbirths.

The unpaid bereavement leave must occur within 60 days of the death of the covered family member or the date on which the leave related to a pregnancy loss, failed adoption, unsuccessful reproductive procedure, or other diagnosis or event impacting fertility and pregnancy occurs.

Under the act, covered employers may, but are not required to, request “reasonable documentation” from covered employees seeking bereavement leave for events listed above related to pregnancy loss, failed adoptions, unsuccessful reproductive procedures, and other diagnoses or events impacting fertility and pregnancy. The act directs that “reasonable documentation” for those purposes shall include a form, to be provided by the Illinois Department of Labor, to be filled out by a health care provider who has treated the employee or the employee’s spouse or domestic partner, or surrogate, for an unsuccessful pregnancy or adoption; or documentation from the adoption or surrogacy organization with whom the employee worked. If requested, the documentation must certify that the employee or his or her spouse or domestic partner has experienced an event relating to a pregnancy loss, failed adoption, unsuccessful reproductive procedure, or other diagnosis or event impacting fertility and pregnancy. Importantly, the act instructs that an employer may not require that the covered employee identify which category of event the unpaid bereavement leave pertains to as a condition of exercising rights under the act.

Finally, the act does not permit a covered employee from taking unpaid leave that exceeds the leave time permitted under the FMLA, or is in addition to the unpaid leave permitted under the FMLA.

For questions about how this affects you or your business, please contact a member of our Employment & Labor Practice Group.

The Chicago City Council recently adopted an ordinance amending the city’s anti-sexual harassment laws. This, among other things, revises the definition of sexual harassment to include sexual misconduct; requires Chicago employers to establish, post and distribute to employees a written anti-sexual harassment policy and display a poster advising employees of the prohibition of sexual harassment; enhances training requirements for employees and managers, including additional training on how bystanders who witness sexual harassment in the workplace should respond; and imposes stricter penalties for violations. The written policy, written notice, and required training components of the ordinance go into effect July 1, 2022.

On July 1, 2022, all employers in the city of Chicago must have a written policy prohibiting sexual harassment. Under the ordinance, an “employer” is defined as “any individual, partnership, association, corporation, limited liability company, business trust, or any person or group of persons that provides employment to one or more employees in the current or preceding calendar year and any agent of such an entity or person.” However, to be considered an “employer” and subject to the ordinance, an “employer” must (1) be subject to Chicago licensing requirements; or (2) maintain a business facility within the geographic boundaries of the city of Chicago limits. Under the ordinance, “employee” is defined as “an individual who is engaged to work within the geographical boundaries of the city of Chicago for or under the direction and control of another for monetary or other valuable consideration.”

The written policy prohibiting sexual harassment must include the following:

• A statement that sexual harassment is illegal in the city of Chicago;
• The following definition of sexual harassment: “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”;
• A requirement that all employees participate in anti-sexual harassment prevention training annually (see below for details);
• Examples of prohibited conduct that constitutes sexual harassment;
• Details on how an employee 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;
• Information on legal services, including governmental agencies, that are available to employees who may be victims of sexual harassment; and
• A statement that retaliation for reporting sexual harassment is illegal in the city of Chicago.

The written policy must be made available in the employee’s primary language within the first calendar week of their employment.

On July 1, 2022, all employers will be required to have all their employees participate in the following trainings annually (i.e. by June 30, 2023, and every June 30 thereafter) and for the specified time periods: (a) One hour of sexual harassment prevention training for all employees; (b) two hours of anti-sexual harassment prevention training for all supervisors/managers; and (3) one hour of bystander training for all employees. Bystander intervention training teaches strategies on how onlookers can involve themselves directly and indirectly into harassment incidents to help those being targeted.

Employers also must retain written records of the policies and trainings given to each employee, as well as other records necessary to show compliance with the ordinance. The records must be retained for a period of at least five years or for 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 presumption (rebuttable only by clear and convincing evidence) that the employer violated the ordinance.

By July 1, 2022, all employers must conspicuously display, in at least one location where employees commonly gather, posters designed by the Chicago Commission on Human Rights discussing prohibitions on sexual harassment. Employers must display at least one poster in English and one in Spanish.

An employer that fails to comply with the mandates related to the information required in the written anti-sexual harassment policy, fails to provide the required trainings and for the time-specified periods, or fails to display the required posters, are subject to fines between $500 and $1,000 for each offense. Every day the violation continues and is not cured constitutes a separate and distinct offense. Other violations of the ordinance will have fines imposed between $5,000 and $10,000 for each offense.

Finally, employees who are victims of any form of discrimination, including sexual harassment, will now have 365 days, instead of 300 days, to file a complaint with the Chicago Commission on Human Rights.

For questions about how this affects you or your business, please contact a member of our Employment & Labor Practice Group.

New EEOC guidance advises employers to ensure that any hiring tools based on algorithms or artificial intelligence (AI) do not negatively impact applicants with disabilities. This obligation includes offering reasonable accommodations to applicants in hiring practices that incorporate AI or algorithmic decision-making.

Many employers use AI-based hiring tools such as “chatbots,” scanners that evaluate resumes based upon key words, video interviewing software that evaluates applicant performance, or testing and monitoring software that measures desired characteristics or skills. The guidance warns of three common applications of these tools that could violate the Americans with Disabilities Act:

• Failing to provide a reasonable accommodation necessary for an applicant to be evaluated fairly by an algorithm or AI-based tool.
• Using a decision-making tool that “screens out” an individual with a disability by preventing the applicant from meeting selection criteria due to a disability.
• Using a decision-making tool that incorporates disability-related inquiries or medical examinations.

Employers are responsible for vetting potential bias in AI-based hiring tools—even if the software is provided by a vendor. The EEOC’s guidance provides questions employers should ask vendors in assessing whether their software is compliant with the ADA.

The guidance provides other practical steps for reducing the chances that algorithmic decision-making will screen out an individual because of a disability, including:

• Informing applicants that reasonable accommodations are available.
• Providing alternative testing or evaluation if an applicant has previously scored poorly due to a disability.
• Providing applicants information about algorithmic hiring tools that are used, including the traits or characteristics measured and any disabilities that may negatively impact an applicant’s result.
• Basing traits and characteristics that are evaluated by AI on necessary job qualifications.
• Selecting algorithmic evaluation tools designed with accessibility for individuals with disabilities in mind.

The guidance is part of the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative, a new agency-wide program that is holding listening sessions, identifying best practices, and issuing guidance to assist employers.  The EEOC also recently took up a case involving discriminatory hiring software that was programmed to automatically reject applicants over a certain age. Although that case involved the intentional use of hiring technology to discriminate, it signals the EEOC’s increased scrutiny of these tools and their effects on applicants.

The Federal Trade Commission, which monitors companies for unfair or deceptive business practices, has also recently aimed a spotlight on AI. In April 2021, the agency released informal guidance advising companies to be aware of potential bias when using algorithmic decision-making software. In December 2021, the FTC announced its desire to pass rules ensuring that algorithmic decision-making does not result in unlawful discrimination. In recent years, the FTC has also handled several complaints regarding the unfair use of AI and algorithmic tools in hiring, including one related specifically to hiring tools.

State and local governments have been more active in addressing the potential for bias when using AI. The 2020 Illinois Artificial Intelligence Video Interview Act already reflects some of the best practices contained in the EEOC’s guidance, including requiring employers to notify applicants if AI is used to analyze video-recorded interviews and obtain their consent in advance. Employers must also describe how the AI technology works and what characteristics it will measure. A recent amendment now requires employers who use AI-based video interview analysis to report demographic information to the state to be evaluated for potential bias. Maryland passed a similar law in 2020 that prohibits the use of facial recognition technology during the hiring process without the applicant’s consent. Effective January 1, 2023, New York City employers will be prohibited from using automated decision-making tools to screen applicants and evaluate employees unless the tool has undergone a “bias audit.” The use of facial recognition technology and other tools involving an applicant’s biometric characteristics is also regulated by state laws in Illinois, Texas, and Washington. 

While the EEOC’s new guidance is a big step toward helping employers evaluate their hiring practices for potential disability bias, it leaves many issues unaddressed. For example, the guidance recognizes that algorithmic decision-making tools may also negatively affect applicants due to other protected characteristics such as race or sex, but the guidance is limited to disability-related considerations alone. And although the EEOC’s action highlights the potential for disability discrimination related to hiring tools, there are a variety of other employment and privacy laws potentially affecting the use of algorithmic decision-making in the workplace. Additionally, employers should be prepared for more state or local rules regulating the use of AI, facial recognition, and biometrics in the coming years.

For more practical guidance on implementing AI-based technologies in the workplace, see our HR Checklist for Using Artificial Intelligence, Facial Recognition, and Biometrics or contact our Employment & Labor Practice Group or Privacy & Data Security Practice Group.

A strong push continues for states to adopt stricter pay equity laws and enforce efforts to combat pay inequities for certain protected classes, including women and individuals of color. Many states, including Illinois, have prioritized pay equity by passing laws designed to reduce wage gaps.

The Illinois Equal Pay Act (“IEPA”) was amended in 2021 to require certain private businesses to obtain an Illinois Equal Pay Registration Certificate, and recertify every two years thereafter.  Covered businesses are those that have 100 or more employees in Illinois and are required to file an EEO-1 Report with the Equal Employment Opportunity Commission.  Importantly, the Illinois Department of Labor (“IDOL”) has instructed that employees working remotely in states outside of Illinois, but who report directly to an employer’s facility in Illinois, should be counted in calculating whether an employer meets the 100 or more employee threshold that would render it a covered business.

IDOL sets first application deadlines

On January 24, 2022, IDOL announced it would communicate directly with covered businesses when it is time for them to apply for the certificate. According to IDOL, each covered business will receive no less than 120 days’ advance notice of their deadline. The first group of Illinois covered businesses was notified that their deadline to apply is May 25, 2022. The second group was subsequently notified that their deadline is June 22, 2022. Because IDOL is randomly selecting covered businesses to which it sends notices, some may not receive their notice of their assigned registration date until late 2023 to meet the final deadline of March 23, 2024.

Any employer that is a covered business should, if it hasn’t already, register with IDOL by providing the contact information of key personnel members to ensure that future communications and notices will be received. IDOL is requesting the names and email addresses of three key business personnel from every covered business. Importantly, IDOL’s failure to assign a registration date does not exempt a covered business from compliance.

If a business does not currently employ 100 or more employees in Illinois (which includes out-of-state remote workers who directly report to an Illinois facility), registration with IDOL is not required. However, any business that subsequently employs 100 or more employees in Illinois is required to submit to IDOL the requested contact information by January 1 of the following year. It will then be assigned a deadline to apply for the certificate. If an employer receives a notice from IDOL to recertify for its certificate, and at that time the employer has fewer than 100 employees in Illinois, the employer must certify in writing to IDOL that it is exempt from the IEPA certification and reporting requirements.

What can employers do to prepare for application?

It is strongly recommended that in advance of receiving notice from IDOL with the deadline to submit your application for the certificate, covered employers should begin reviewing and gathering the relevant data and documents needed to complete and submit the application. This includes “wage records” and an “Equal Pay Compliance Statement.” Employers also are strongly encouraged to identify and correct any pay equity concerns.

Regarding “wage records,” the IEPA requires all covered businesses to submit to IDOL a copy of their most recently filed EEO-1 report. Additionally, all covered businesses must compile a list of data for all their Illinois-based employees during the past calendar year. IDOL released a template covered businesses may use for this purpose. It requires them to provide information on their Illinois-based employees, separated by gender and the race and ethnicity categories as reported in their most recently filed EEO-1 report. It also requires the county in which the employee works, the date the employee started working for the covered business, and any other information IDOL deems necessary to determine whether pay equity exists among employees, and to report the total wages paid to each employee during the past calendar year, rounded to the nearest $100.

Regarding the Equal Pay Compliance Statement, a covered business must submit a filing fee of $150 and a statement signed by a corporate officer, legal counsel, or authorized agent certifying the following:

• That the business complies with the IEPA and “other relevant laws,” including Title VII of the Civil Rights Act of 1964, the federal Equal Pay Act of 1963, the Illinois Human Rights Act and the Illinois Equal Wage Act;
• That the average compensation for female and minority employees is not consistently below the average compensation (as determined by the U.S. Department of Labor) for its male and nonminority employees within each of the major job categories in the EEO-1 report for which an employee is expected to perform work, taking into account such factors as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, education or training, job location, use of a collective bargaining agreement, or other “mitigating” factors;
• That the business does not restrict employees of one sex to certain job classifications, and makes retention and promotion decisions without regard to sex;
• That wage and benefit disparities are corrected when identified to ensure compliance with the equal pay and discrimination laws;
• How often wages and benefits are evaluated; and
• The approach the business takes in determining the level of wages and benefits to pay its employees.

The post-application process

Within 45 calendar days after receipt of the application, IDOL must provide the covered business with a compliance certificate, or a statement explaining why an application was rejected. A covered business will have 30 days after receiving a rejection notice from IDOL to cure any deficiencies in the application. A covered business that fails to make a good-faith effort to comply or engages in multiple violations of the laws identified in the compliance certification may result in suspension or revocation of a certification, as well civil penalties of up to $10,000.

IDOL’s receipt of an application or issuance of a certificate does not establish that a covered business is in full compliance with the IEPA. Nor is IDOL’s issuance of a certificate a defense against an IPEA violation found by IDOL, or a basis for mitigation of damages.

Per the IEPA, any individually identifiable information submitted to IDOL within or related to an equal pay registration application, or otherwise provided by a covered business as part of its equal pay compliance statement, will be considered confidential information and exempt from disclosure under the Illinois Freedom of Information Act (FOIA). However, the job category and the average hourly wage by county for each covered business’s Illinois-based employees’ gender, race and ethnicity category on the registration certificate are not confidential information and subject to disclosure under FOIA. A covered business’s current employees may request data regarding their job classification or title and the pay for that classification; however, no individually identifiable information may be provided to an employee making this request. IDOL also may share data and identifiable information with the Illinois Department of Human Rights or the Illinois Attorney General’s office. Finally, IDOL’s decision to issue, deny, revoke or suspend an Equal Pay Registration Certificate is considered public information.

Employers who have questions related to this process or who seek to remedy pay disparity should seek assistance from experienced employment counsel. For questions about how this affects you or your business, please contact a member of our Employment & Labor Practice Group.

President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” on March 3. As its name suggests, the law prohibits pre-dispute arbitration agreements that require individuals to arbitrate any claim under federal, tribal or state law relating to a sexual assault or sexual harassment dispute. In other words, employers can no longer compel employees to arbitrate sexual assault or sexual harassment claims. Class action waivers are also prohibited with respect to those claims.

The act took effect immediately and applies retroactively to arbitration agreements signed before March 3. However, it only prohibits mandatory arbitration with respect to new sexual assault or harassment claims made after its effective date.

Importantly, if a dispute arises regarding applicability of the new law, the act provides the dispute will be determined under federal law, and that validity and enforcement of arbitration agreements under the act shall be determined by a court, rather than by an arbitrator. Supporters of the act said it gives sexual assault and harassment victims the choice to pursue their claims in court rather than in a confidential arbitration, should they choose to do so.

What does this mean for employers that include mandatory arbitration clauses in their employment or confidentiality agreements? While mandatory arbitration clauses covering all claims (including sexual harassment claims) will not be found unenforceable in their entirety for including the prohibited claims, employers should review their agreements and consider excluding sexual assault and harassment claims from the mandatory arbitration requirements. Employers should also consider whether they are subject to any state laws that prohibit mandatory arbitration of certain claims in the event those state law prohibitions are more restrictive than those under the new federal law.

If you have questions about how these changes affect you, please contact an attorney in our Employment & Labor Practice Group.

On January 13, 2022, the U.S. Supreme Court issued two decisions addressing COVID-19 vaccine mandates implemented by the Biden Administration. In the first opinion (National Federation of Independent Business v. OSHA), by a 6-3 majority, the Supreme Court blocked implementation of OSHA’s Emergency Temporary Standard (ETS) that would have required all employers with 100 or more employees to adopt a policy requiring mandatory COVID-19 vaccination and/or testing and masking policies for employees. OSHA’s ETS had recently taken effect, and the vaccination/testing requirements were set to become effective as of February 9. This ruling from the Supreme Court appears to signal the end of OSHA’s ETS.

In a second opinion released January 13 (Biden v. Missouri), a 5-4 majority upheld implementation of an interim final rule issued by the Secretary of Health and Human Services that mandates COVID-19 vaccination (with certain exceptions, including medical and religious exceptions) of employees in health care facilities that receive Medicare or Medicaid funding. Unlike the OSHA ETS, the HHS interim rule does not include an option for employees to undergo weekly testing and wear masks in lieu of vaccination. The Supreme Court’s ruling lifts injunctions that had been issued in two different district court cases affecting 25 states (including Missouri). Implementation of HHS’s interim final rule is already underway in the 25 states not affected by the injunctions, and will presumably begin in the remaining states.

The January 13 decisions from the Supreme Court did not include consideration of President Biden’s Executive Order 14042 mandating that federal contractors require COVID-19 vaccination for their employees; that mandate remains stayed nationwide. Its enforceability is pending before the Eleventh Circuit, which will likely not issue a decision for weeks since briefing will not conclude until February 22.

If you have questions about how the Supreme Court’s decision may affect you or your business, please contact a member of our Employment & Labor Practice Group.