Schools Grapple with Array of Mask and Vaccine Laws Changing public health guidelines and disputes over masking policies may leave school districts and boards wondering what, as employers, they should do.
The COBRA subsidy period under the American Rescue Plan Act ends Sept. 30, 2021. Employers and plan administrators must send subsidy termination notices to assistance eligible individuals between Aug. 16 and Sept. 15.
Littler Shareholder and core Privacy Team member Zoe Argento discusses the extensive list of rights the CPRA confers on employees, independent contractors, and job applicants who reside in California. What is the scope of these rights, and what are employers’ obligations when responding to requests? Learn the answers to these questions and many more during this informative podcast.
Illinois Governor J.B. Pritzker recently signed a new law into effect that amends the Illinois Freedom to Work Act (IFWA) and creates greater obstacles for employers when it comes to the enforceability of restrictive covenants such as non-competition and non-solicitation agreements. The new law, signed on August 13 and taking effect on January 1, 2022, will invariably impact any Illinois employer that either deploys such agreements already or contemplates implementing such agreements in the future. Because the new law only applies to agreements that are entered into on after January 1, 2022, now is the time for employers to review and revise their restrictive covenant agreements. Additionally, it is essential to begin planning for the transition to the new legal standards in 2022 and beyond. What are the seven key takeaways employers need to know?
7 Key Takeaways from Illinois’s New Law
Before the enactment of the new law, the validity of restrictive covenant agreements was largely governed by Illinois common law. The amended IFWA now contains a number of provisions that dramatically alter the legal standards relating to the enforceability of employee non-competition and non-solicitation covenants in the State of Illinois. Some of the new law’s key provisions include:
- The law codifies certain judicial rulings relating to the adequacy of consideration in support of enforcement of non-competition and non-solicitation covenants. Under the new law, a restrictive covenant is supported by “adequate consideration” if (1) the employee has worked for the employer for at least two years after signing a restrictive covenant agreement, or (2) the employer has provided the employee with “professional or financial benefits” that may constitute independent consideration for entering into a restrictive covenant agreement. The law does not define precisely what amount of “professional or financial” benefits shall constitute adequate consideration.
- A covenant not to compete is not valid or enforceable unless the employee’s actual or expected annualized rate of earnings exceeds $75,000 per year, subject to additional increases in subsequent years.
- A covenant not to solicit is not valid or enforceable unless the employee’s actual or expected annualized rate of earnings exceeds $45,000 per year, subject to additional increases in subsequent years.
- Employers are required to provide employees with at least 14 days to review a restrictive covenant agreement and decide whether to sign, although the employee has the option of signing the agreement before the 14-day period has ended. Employers must also advise employees that they have the right to consult with an attorney before entering into a restrictive covenant agreement.
- An employee can recover attorneys’ fees and costs from an employer if the employee is the prevailing party in a civil action or arbitration filed by an employer to enforce non-competition or non-solicitation covenants.
- Non-competition and non-solicitation covenants are not enforceable against an employee who has lost their job due to COVID-19 or to “circumstances that are similar to the COVID-19 pandemic” unless enforcement of the restrictive covenant agreement includes the receipt of compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement, minus any compensation earned through subsequent employment.
- The new law provides the Illinois Attorney General with broad authority to investigate employer conduct when there is “reasonable cause” to believe that an employer is engaged in a pattern or practice prohibited by the IFWA. The Illinois Attorney General is permitted to seek compensatory damages and equitable remedies against employers, including monetary penalties of $5,000 per violation or $10,000 for each repeat violation within a five-year period.
What Should Illinois Employers Do?
Significantly, the legal standards set forth in the new law do not apply to restrictive covenant agreements that are entered into prior to the effective date of the legislation, or January 1, 2022. In other words, employers who have entered into legally enforceable agreements with their employees under the current state of the common law would be able to rely upon and enforce these agreements under the preexisting – and less restrictive – legal standards.
Accordingly, we recommend that you consider reviewing your existing restrictive covenant agreements to maximize the potential for enforcement in advance of January 1, 2022. Further, you should begin planning for the changes that will become effective on January 1, 2022. Employers who fail to do so will find they have practical and legal issues enforcing their future agreements.
We will monitor these developments and provide updates as warranted, so make sure that you are subscribed to Fisher Phillips’ Insights to get the most up-to-date information direct to your inbox. If you have further questions, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our Chicago office.
A National Labor Relations Board (NLRB) field office issued a complaint against Home Depot asserting that the home improvement chain discriminated against a Minneapolis employee who wore a “Black Lives Matter” slogan on his apron.
Gov. Daniel McKee recently approved broad new pay equity legislation that will require employers to change many common workplace practices.
President Biden just announced a directive to the Department of Health and Human Services to require nursing homes mandate the COVID-19 vaccine of all employees or lose Medicare and Medicaid funding. Responding to the proliferation of the highly transmissible Delta variant juxtaposed against the obligation to ensure the health and safety of the most vulnerable patients, the August 18 directive follows a trend of progressive efforts to combat vaccine hesitancy from healthcare workers in the industry’s unique critical and acute care settings. Nursing homes should thus immediately begin preparing to comply with the new regulation, estimated to go into effect as early as next month.
Public Policy Favors Efforts to Boost Vaccination Rates in the Healthcare Industry
Although this move marks the first time the administration has threatened withholding federal funds to increase vaccination rates, the objective should come as no surprise to the nation’s nursing homes. Over the past month, as a result of mounting pressure from national healthcare organizations and societies amidst the recent Delta surge, the White House has become increasingly vocal and regulatory in boosting vaccine rates – specifically prioritizing efforts in the healthcare industry. This week’s directive follows a developing pattern in the industry to require the vaccination (or submission to weekly testing) of medical personnel working in acute and long-term care. The Delta variant now accounts for 99% of new COVID-19 cases and, unfortunately, nursing homes are witnessing rising cases of the variant among residents. This is especially true where employee vaccination rates remain low.
Despite the short timeline to comply, the Centers for Medicare & Medicare Services (CMS) assures it will work collaboratively with nursing homes, employees, and unions to increase employee vaccination rates before the new regulation goes into effect. According to the CMS, of the 1.3 million employees of the approximate 15,000 nursing homes participating in Medicare and Medicaid, about 40% remain unvaccinated. Due to Delta variant, this number now threatens the past 18 months of slow but steady progress in decreasing COVID-19 rates in resident populations.
CMS officials are thus confident legal authority supports the new regulation, pointing to the Agency’s obligation to act swiftly as it relates to the health and safety of nursing home residents. In fact, as demonstrated by the failed legal challenges to highly publicized employee vaccine mandates of hospital systems across the country, sound public policy supports widespread vaccination mandates of healthcare workers, especially in the acute care setting. The public policy is, therefore, just as strong in relation to nursing homes – where acuity rates are always high and where residents make up the nation’s sickest elderly populations, the most susceptible patients to deadly transmission of the virus.
So How Can Nursing Homes Prepare?
First and foremost, you should begin preparing now, prior to the mandate taking effect. To avoid the most disruption to employee morale amongst the unvaccinated, it is critical you take the time now to address vaccine hesitancy and consider options to boost your workforce vaccination rate.
Accordingly, in this interim period before the regulation is implemented, you should determine whether to mandate the vaccine earlier or take another route to increase your number of vaccinated employees. As you likely know the dynamics and demographics of your employees best, it may behoove some employers in the industry to initially confront vaccine hesitancy with less intrusive non-compulsory measures. The goal is to most delicately, yet persuasively motivate those who have been hesitant to get the vaccine to do so prior to blindsiding with the CMS’s mandate.
For example, in an industry built on reason and science, healthcare workers in particular may be influenced by an educational campaign disseminating real facts and reliable information concerning the vaccine’s safety and efficacy. In helping your employees sort through confusing and contradictory information in a non-condescending manner, you create a comfortable space wherein many may change their minds on the issue. Further, in emphasizing the nature of the hard, yet rewarding work of nursing home employees in caring for the nation’s most vulnerable and ill, successful outreach may include underscoring the particularly deadly risk the Delta variant poses to the immunocompromised, their own patients.
Another potential “carrot” – as opposed to “stick” – method to combat vaccine hesitancy is to offer incentives for full vaccination. The most common incentives employers have offered include cash, gifts, or paid time off. Our recent analysis of applicable EEOC guidance provides instructive commentary so you do not run afoul of discrimination laws and wage and hour issues should you pursue this route. Regardless of the incentive offered, you remain obligated to engage in the interactive process to determine whether you can accommodate employees with legitimate medical or religious reasons for not participating in an incentive program. Accordingly, alternative ways to earn the incentive may be watching a workplace COVID-19 safety video or reviewing CDC literature on mitigating the spread of COVID-19 in highly susceptible environments.
In focusing your efforts now to dispel vaccine hesitancy if common in your workforce, at the very least, you will have already initiated measures to hopefully allow your workforce to digest the looming regulation by the time the CMS does formally institute the vaccine mandate. Again, through educational outreach, explaining the pending mandate as per the CMS regulatory schema to continue receiving federal funding, perhaps the unvaccinated may begin to understand the importance of vaccines in caring for the critically ill.
We’ll monitor the situation and provide updates as developments occur, so make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information. If you have questions about how to ensure that your vaccine policies comply with workplace and other applicable laws, visit our Vaccine Resource Center for Employers or contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our Healthcare Industry Team.
In this podcast episode, Co-Chair of Littler’s Privacy Practice, Philip Gordon, along with core privacy team members, shareholders Kwabena Appenteng and Zoe Argento, cover the big change for employers with respect to information security under the CPRA – the new, affirmative obligation on employers to implement reasonable security policies and practices. Is this a game changer for employers?
As companies move to a hybrid workforce, the race is on among vendors selling digital headquarters (HQ) platforms that bring remote and in-person staff together, both for official work and more casual, social interactions.
Reflecting on my experience as well as what I’ve read of the Andrew Cuomo and Roger Ailes investigations, several lessons emerge for HR professionals and other company…
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