From its office in Clayton, Missouri, Danna McKitrick, P.C., delivers legal representation to new and growing businesses, financial institutions, non-profit and government-related entities, business owners, individuals, and families throughout the greater St. Louis region and the Midwest.
Danna McKitrick attorneys practice across many areas of law, both industry- and service-oriented.
Employment law changes regarding human rights and equal pay have arrived in Illinois. On March 23, 2021, Governor J.B. Pritzker signed into law S.B. 1480, which makes significant amendments to both the Illinois Human Rights Act (IHRA) and the Illinois Equal Pay Act (IEPA), effective immediately.
Criminal Conviction Record and Employment
S.B. 1480 amends the IHRA with more limitations on how an employer may use an employee’s or applicant’s criminal conviction record when making employment decisions. It is now a civil rights violation for any employer to use a criminal conviction record as a basis to refuse to hire, terminate, or take any other adverse employment action against the applicant or employee with two exceptions:
There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; or
By granting or continuing employment, an “unreasonable risk” would exist “to property or to the safety or welfare of specific individuals or the general public.”[1]
To determine whether a substantial relationship exists, an employer should consider whether the employment position “offers an opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”[2]
The new law also requires an employer to consider the following relevant factors when making this determination: Continue reading »
April 1, 2021 rings in new employer obligations with the enactment of the American Rescue Plan Act of 2021 (ARP). Employers and employees should take note of the recent changes to Consolidated Omnibus Budget Reconciliation Act (COBRA), Families First Coronavirus Response Act (FFCRA), and unemployment benefits to ensure compliance. We have highlighted those changes for you below.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Additionally, the following individuals may also be eligible for the subsidy:
Individuals previously eligible for COBRA continuation coverage which would have extended into the subsidy period under the ARP who:
Did not elect COBRA coverage (e.g., an individual involuntarily terminated on March 30, 2020 who did not elect COBRA but would be within their 18-month coverage period if they had elected COBRA), or
Dropped COBRA coverage (e.g., an individual involuntarily terminated on March 30, 2020, who elected COBRA, but did not pay premiums after December 31, 2020 but are still within their 18-month COBRA coverage period).
Individuals who are or become eligible during the subsidy period (e.g., an individual involuntarily terminated on March 15, 2021 or an individual involuntarily terminated on May 1, 2021)
The coverage extends to the employees, their spouses, and their dependent children. Similar to the standard COBRA eligibility, once an AEI becomes eligible for other group health insurance coverage or Medicare, they must notify their employer of their loss of eligibility or face a penalty.
Under ARP, employers are required to provide several new notices to those who become eligible for COBRA continuation coverage by May 31, 2021. (The DOL is scheduled to issue model notices by May 10.)
In addition to the current COBRA notice requirements, the initial notice should include the following information: Continue reading »
Equal Pay Day 2021 is March 24, symbolizing how far into the year women must work to earn what men earned in the previous year. Thankfully, this date is not static and falls earlier each year with this year falling 19 days earlier than just five years ago. While we celebrate this achievement, we have a long way to go to completely close the pay gap between men and women.
The Equal Pay Act has prohibited sex-based wage discrimination for over 50 years. Under the Act, an employer may justify wage disparities only based on one of four exceptions:
Seniority;
Merit;
Measurement of earnings by quantity or quality of production; or
A differential based on “any factor other than sex.”
The last “catch-all” exception was the focus of Rizo v. Yovino.Aileen Rizo, an experienced middle and high school math teacher, was hired as a math consultant by the Fresno County Office of Education (“Fresno”). Continue reading »
Getting back to normal in the next year or so may be impossible without the widespread use of COVID-19 vaccines. Although authorities do not anticipate the vaccines will be widely available until Spring 2021, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.
Currently there is no definitive answer regarding mandatory vaccinations, and your plan will depend on many variables. Because this is the first pandemic in our memory and it is all new to us, consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.
Your business may be one of the lucky ones that navigated the pandemic without causing a loss of morale or culture, operating safely by working remotely, social distancing, wearing masks, and following CDC requirements. If so, setting aside all other factors, you may simply want to encourage vaccinations for the first few months that they are available, especially given potential concerns about the safety and efficacy of the vaccines and the ever-changing laws. You could do this by training and educating employees as to the efficacy of the vaccine, encouraging participation, and offering the vaccine for free (if not covered by insurance) at the workplace during work hours. Continue reading »
Many employers require their employees to execute employment agreements, often containing confidentiality and non-compete clauses, which contain provisions requiring arbitration of any claim which an employee might file against the employer. However, unless these provisions are carefully drafted, the arbitration provisions may be found unenforceable.
In Caldwell v. Unifirst Corp, et al. issued on October 27, 2020, the Missouri Court of Appeals, Eastern District, upheld a decision by an arbitrator holding the arbitration clause at issue there to be unenforceable due to a lack of consideration. The Court in Caldwell agreed with the arbitrator that the arbitration clause in the employment agreement Caldwell signed with Unifirst was invalid for lack of mutual consideration because the employer had reserved the right to seek injunctive relief in court in the event the employee violated his non-compete obligations. Thus, while the employee was required to arbitrate all claims he might have, the employer would not be required to arbitrate its claims for breach of the non-compete clause, the type of claim most likely to be pursued by the employer against a former employee. As a result, the arbitrator (and the Court) held that the consideration offered by the employer was illusory, such that the agreement to arbitrate was void. Continue reading »
One of these psychiatry services providers must distribute new policies and procedures concerning patient requests for records to all members of its workforce and relevant business associates within 30 days and to new employees upon hiring. Recipients are required to execute certification of having read, understood, and promised to abide by these policies and procedures. Training and individual certifications must be completed within 60 days. Going forward, the practice must implement annual training. Any reportable events must be fully investigated and described in a report as part of the full-scale written “Implementation Report.” The practice must submit the report to the U.S. Department of Health and Human Services (HHS) within 120 days. The CAP concludes with a “Final Report,” again containing specific terms and obligations of the psychiatry practice. Continue reading »
The Department of Labor (DOL) published new guidelines on September 16, 2020 that revise and clarify portions of the Families First Coronavirus Relief Act (FFCRA). The new guidelines were issued following a ruling by a New York District Court that declared certain previously issued regulations invalid. These updated regulations relate to the following:
The requirement of “work availability,”
The requirement of employer approval for FFCRA leave to be intermittent,
The definition of “health care provider,” and
Requirements for notice and documentation.
The new regulations went into effect at the time they were published and will remain in effect until December 31, 2020 when the FFCRA is set to expire.
Work Availability Requirement
The DOL clarified that the work availability requirement applies to all qualifying reasons to take leave under the FFCRA. Thus, the leave may only be taken if the employer has work for the employee. The qualifying reason must be the actual reason the employee is unable to work, rather than not having work to do regardless of whether the qualifying reason occurs. Previously, the work availability requirement was only explicitly applicable to three of the six possible qualifying reasons for leave.
The Supreme Court, in a 6-3 decision, ruled that Title VII of the Civil Right Act, which prohibits employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.
Background
In recent years, federal circuit courts have come to conflicting conclusions when addressing whether Title VII of the Civil Rights Act, prohibiting employment discrimination on the basis of sex, encompasses sexual orientation and gender identity. In an attempt to resolve the inconsistent holdings across federal appellate courts, the Supreme Court agreed to hear three cases that dealt with this issue: Altitude Express, Inc. v. Zarda; Bostock v. Clayton County; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. All three cases involved an employer allegedly firing a long-time employee simply for being homosexual or transgender. Continue reading »
co-presented by Katherine M. Flett and Ruth Binger
Ruth Binger and Katherine Flett presented a webinar on keeping your business in business, which included employment and business strategies during the pandemic.
