The haze of Springfield’s recent legislative session has cleared, and Illinois has become the latest state poised to legalize marijuana. Like many other businesses throughout the country, Illinois employers will be faced with the complexity of enforcing their drug and substance abuse policies while their employees have the legal right to use marijuana outside of the workplace.
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The U.S. Equal Employment Opportunity Commission (EEOC) has updated last week’s statement, described here, to confirm that in addition to 2018 “Component 2” pay data, it will now also be seeking data for calendar year 2017 by the September 30 deadline.

While EEO-1 compliance for 2019 appears to be a moving target, employers should plan to heed the EEOC’s statement and prepare to comply with the September 30 deadline for Component 2 data for both 2017 and 2018.
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The U.S. Equal Employment Opportunity Commission (EEOC) has issued a statement notifying covered entities to prepare to submit EEO-1 “Component 2” pay data for calendar year 2018 by the end of September. According to the Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection, the EEOC expects to start collecting this data in mid-July, and in the meantime, filers must still submit their EEO-1 “Component 1” data for calendar year 2018 by the extended May 31, 2019 deadline. In light of these developments, covered employers should, at a minimum, prepare to file 2018 Component 2 pay and hours data by September 30, in addition to filing Component 1 data by May 31.
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For several years now, union and non-union employers have been stuck between a rock and a hard place because of dissonance between anti-discrimination laws and the National Labor Relations Act (NLRA). Consider the following situation: An employer can discipline its employees based on discriminatory or harassing behavior and then face an unfair labor practice charge if the employees claim that their conduct was protected concerted activity under the NLRA. Alternatively, an employer can choose not to discipline its employees for such conduct and then get caught in the crosshairs of the Equal Employment Opportunity Commission or a state agency for violating a federal or state fair employment law.
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Last week’s decision in Ward v. Tilly’s Inc. means that California employers with on-call policies are required to pay a minimum of two hours reporting time pay, even if the employee is told there is no need to come in to work that day.

A California Court of Appeal held that a company’s on-call scheduling policy requiring employees to call the employer in advance of a shift to find out if they need to appear for work triggered “reporting time” pay obligations under the California Industrial Welfare Commission’s (IWC) Wage Orders.

Under the Wage Orders, an employee who is required to report for work and does report must be paid for half the employee’s usual or scheduled day’s work, but in no event less than two hours’ pay, nor more than four hours’ pay, at the employee’s regular rate of pay.
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Rather than wait for another case to come before it to address the requirements for joint employer status, the majority of the National Labor Relations Board (NLRB) members have opted to take the little-used rulemaking route. The proposed rule, which was released on September 14, 2018, would amend 29 CFR part 103 to add §103.40, defining joint employers. The proposed definition is only two sentences long:

An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.


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As of August 21, 2018, the Nursing Mothers in the Workplace Act, 820 ILCS 260, has been amended to provide that Illinois employers that are subject to the Act must provide reasonable break time whenever the employee needs to express milk. The break time may (but not “must”) run concurrently with break time already provided.
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The California Supreme Court adopted a new test Monday for determining whether workers are employees—rejecting the court’s previous multi-factor test. The decision in Dynamex Operations West Inc. v. The Superior Court of Los Angeles County, S222732 (Cal. Apr. 30, 2018), has immediate ramifications for employers in California who hire or utilize independent contractors. In short, the bar for establishing “independent contractor” status has been raised, and California companies will have to assess their practices in order to conform to this new reality.
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The Ninth Circuit U.S. Court of Appeals held Monday, on the eve of National Equal Pay Day, that it violates the Equal Pay Act to use pay history to justify wage gaps between male and female employees for the same or substantially similar work. The decision in Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018) has immediate ramifications for employers in the Ninth Circuit in evaluating employee compensation.
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As we had previously reported, in 2015 the then-Democrat controlled National Labor Relations Board (NLRB) in the Browning-Ferris case ruled that a joint employer relationship could be found if an entity had mere indirect or potential control over individuals employed by another entity. This decision reversed decades of precedent in which the NLRB held that a joint employer relationship would only be found if one entity had “direct and immediate control” over individuals employed by another entity.
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