Administrator's Advantage
The Human Resources Issue
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December 23, 2019 | Volume 6
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A Note from the Editor
By: Betsy Kopczynski
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Happy Christmas and Merry Holidays! We have approached the end of 2019 and oh, how quickly time has flown! We have had an extraordinary year as a Chapter and I hope all of you had the chance to attend at least one of our many offerings, whether educational or social. I will not bore you with a recap, but please visit our
website
where you can find not only Chapter news and happenings, Business Partner Resources, and a brand new
photo gallery
containing many of our wonderful 2019 events!
On this last issue of 2019, I will end lightheartedly and full of knowledge by recommending you visit
The Old Farmer's Almanac
web page,
which has lots of fun facts and folklore about the month of December. Happy Reading and Happy Holidays!
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There's An Elephant in the Room
and Her Name is Mary Jane
By: James Oh
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Since June 25, 2019, the date that Governor J.B. Pritzker of Illinois signed into law the Illinois Cannabis Regulation and Tax Act, I have been conducting a decidedly unscientific and informal survey of whether employers have said anything about the impending legalization of marijuana for recreational use in Illinois. The Illinois Cannabis Act becomes effective January 1, 2020 and allows adults 21 or older to possess up to 30 grams of marijuana flower and five grams of marijuana concentrate for personal consumption. The Act also contains explicit “protections” for employers, including that they may continue to have “reasonable drug free workplace policies” and that they may discipline an employee if they have a “good faith belief” that the employee was impaired at work.
None of the people I have asked has said that their employer has addressed how they will handle the issue of cannabis in the workplace. Come 2020, when recreational marijuana becomes legal in Illinois (medicinal marijuana has been legal since 2013 in the Land of Lincoln), it is reasonable to expect that more of an employer’s Illinois workforce will at least try marijuana. Law-abiding citizens who were afraid to try weed before because it was illegal will feel more emboldened to try it once it becomes legal. Most employees will have the common sense not to be stoned at work, just like they know they cannot be drunk at work. But employees may wonder if, instead of a glass of wine at lunch, can they take just one hit of hooch at lunch, or a bite of an edible, not because they want to get high, but because it was a stressful morning and they think (or know) that marijuana will calm the nerves.
There’s an elephant in the room, and her name is Mary Jane, or weed, or pot, or ganja, or reefer – whatever you want to call it. As of the writing of this article, Illinois employers will be four and a half months away from legalization in Illinois. As we get closer and closer to the effective date of the Illinois Cannabis Act, the pressure will build to say something. Employees will be wondering how their boss will deal with suspected marijuana use in the workplace. They may not say so out loud because they don’t want to be thought a stoner (think Cheech & Chong).
Regardless, should you address the elephant in the room? I say yes and recommend that companies with Illinois employees publicly announce to everyone at the company, even those employees of the company who don’t work in Illinois (some may travel to Illinois for a meeting), what company policy is on marijuana in the workplace
First, while the old legal maxim says that possession is nine-tenths of the law, in the employment law space, notice is nine-tenths of the law. If an employer provides notice to its workforce of what company policy or procedure (whether formal or informal) is, that employer is in a much more defensible position when the employer takes disciplinary action for violation of company policy or procedure than the employer who has not provided notice. The Illinois Cannabis Act defines when an employer may consider an employee to be impaired or under the influence and allows an employer to discipline an employee based on a good faith belief that an employee is under the influence or impaired. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
Although the statute does not specifically say so, an Illinois court is likely to consider “good faith belief” to be an affirmative defense for which the employer has the burden of proof. In order to meet that burden of proof, employers with Illinois employees will want to have a written policy and procedure to follow to demonstrate that it provided the employee with a “reasonable opportunity” to contest the decision.
Will a court conclude that an employer did not have a good faith belief of impairment when it did not have a written procedure allowing the employee an opportunity to contest the decision? It comes down to fairness. Due process. If the employer provided the employee with notice of how to contest a decision and the employee did not avail herself of that opportunity, a court is more likely to conclude that the employer had a good faith belief that the employee was stoned at work and, therefore, that the discipline was lawful under the Illinois Cannabis Act.
Second, when Afroman sang that his company took his whole paycheck because he was high, he did not specify in the song whether he was non-exempt or exempt under the Fair Labor Standards Act, the federal law that governs minimum wage and overtime pay. Non-exempt generally refers to employees who are paid by the hour and are overtime eligible. Exempt generally refers to employees who are paid on a salary basis and are not overtime eligible. It is lawful under the FLSA to dock a non-exempt employee’s pay provided that the docking does not drive that employee’s pay under the minimum wage for the week.
Afroman, if he were non-exempt, would likely have a claim for violating the FLSA if his
whole
paycheck really was docked, because that would mean he got paid nothing for the week and therefore, the minimum wage he received for that week was below the current $7.25/hour required under the FLSA. I would not recommend docking a non-exempt employee’s whole paycheck for violating company policy on marijuana in the workplace. Regardless, your company should let its non-exempt employees know that violating the company’s marijuana policy could result in a disciplinary docking of pay.
For exempt employees who are paid on a salary basis, the FLSA regulations provide that “[d]eductions from pay of exempt employees may be made for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct roles.
Such suspensions must be imposed pursuant to a written policy applicable to all employees.
” 29 C.F.R. § 541.602(b)(5). If, after January 1, 2020, employers want to be able to dock an exempt employee’s pay for violating a workplace policy on marijuana, it needs to have “a written policy applicable to all employees.” The FLSA regulations indicate the wisdom of disseminating a written policy on marijuana in the workplace that contains a procedure to follow if an employee wants to contest disciplinary action for violating the company’s policy on marijuana in the workplace. In other words, the FLSA also says address the elephant in the room.
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ALA Chicago | NEW! "Under 5" Group Forming
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Are you new to the legal industry or have less than five years experience working for a law firm or legal department? Would you be interested in gathering together with others in the same boat to share knowledge, tips & tricks? ALA Chicago, with the help of Ernie Jaseckas, Executive Director at Robbins, Salomon & Patt, Ltd., is forming an “Under 5” special interest group for any ALA Chicago members that are new to legal, new to their firm or otherwise looking for another avenue for networking/mentorship.
If you are interested in joining this group, please click
HERE
and select
Request Membership
in the upper right hand corner. You will need to be logged in to access the group. We will be hosting an inaugural event in the new year for all those interested!
If you would be interested in MENTORING any of our Under 5 Members, please
EMAIL
us and let us know!
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President's Message | Laura Sears, CLM
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When I was incoming Chapter President in the Spring of 2001, my President’s Message included this story:
On a recent Monday morning, my ten-year-old son suddenly remembered a homework assignment that was due that day. His Sunday marathon of completing his fourth grade homework was not quite complete. He was to create an animal or insect out of things from our backyard. He chose to make a butterfly. At 6:30 a.m., we found ourselves foraging outside for the right materials to form a body, wings, and antennae. By 7:30, the butterfly was complete, Jeff had been dropped off at school, and I was on the train…. How great that the two of us worked together – Jeff collecting his materials and carefully gluing them to the paper; me giving advice, watching the clock, holding down different butterfly “parts” while the glue dried as he went on to the next “part.”
People working together to complete a project under pressure and a time deadline. Where have we experienced that before – every day at work perhaps? Whether we are assisting and supporting our children, peers, staff or our firms’ attorneys…helping them complete an assignment…collecting information…putting together a proposal…implementing a change…getting through the day…we rely on all of our resources to collect all of the different “parts.”
A key resource that I have certainly mined – and you should, too – is ALA. Whether it is building relationships with members of our Chapter or members around the country, I know that there is someone (or many someones) I can contact with a question, problem or, yes, when I just want to vent. Tap into the great knowledge, experience, and support that your fellow members can provide! Our networking opportunities, combined with the high caliber education that we have access to, are unparalleled in our industry and are indispensable to our success as law firm leaders.
Membership renewal time is here - keep those benefits coming. ALA Chicago’s 2020-2021 membership renewal process is in full swing – renew prior to January 31 to save $25 off our regular membership of $100. This low membership fee includes access to all of our education, networking events, listservs, and newsletter. Remember our current membership year ends on March 31, 2020, and many opportunities for education and networking still remain.
Be sure to renew your national membership with ALA prior to December 31 to take advantage of the wide range of benefits, connections, and educational offerings. Also, be sure to register for the national ALA Conference in May in Salt Lake City. It is the premiere event of our association and you will not want to miss it. Our Chapter still has some conference scholarships to award in the new year!
Want to gain more from your membership? Volunteer! Our Nominating Committee is seeking members who are interested in serving on committees that support our Chapter’s programs and initiatives. Be sure to contact Mike Motyka, Past President and Chair of the Nominating Committee, if you are interested. Your partnership with ALA will be more gratifying and meaningful as a result of becoming involved. Many opportunities exist for micro volunteering; we know your time is valuable!
I should close the loop on Jeff, who will be
thrilled
to learn of his mention. He is now 28 and no longer has last minute school projects. Jeff will be traveling this Christmas to meet his two-week-old niece, Jane – our first grandchild.
My best wishes to all for a very happy holiday season and a joyous and healthy 2020!
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to our newest ALA Chicago Members!
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Lisa Boone
Firm Administrator
Handler Thayer, LLC
Laura Chapa
Office Administrator
Roetzel & Andress
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Patrice Loisi
Director of Human Resources & Benefits
Riley Safer Holmes & Cancila LLP
Meaghan Synowiecki
Administrative Manager
Daley and Georges, Ltd.
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Don’t Wait for the Fire | Phil Crivellone
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Like Chicago, the city of Seattle was also leveled by a great 19th century fire. In 1889, an assistant in a woodworking shop was heating glue over a gasoline fire when the glue boiled over and spilled onto the turpentine and wood chip covered floor. You can imagine what happened next.Nearly every building was made of wood, the city had a barely-existent fire department, and the weather was breezy and dry. After just over 12 hours, 25 city blocks had burnt to the ground. Such is life in the 19th century. Fortunately, the people of Seattle weren’t stuck with a cow to blame.
In the rush to rebuild the city, Seattle’s population doubled and the new town, replete with modern brick buildings, would sit several feet higher than the original. The fire also led the city to abandon its all-volunteer fire department in favor of a professional one and took control over the water supply. Voila, no more catastrophic fires.
With my ALA Chicago chapter scholarship, I was afforded the opportunity to visit 21st century Seattle to attend the ALA Master Class: Leadership for Legal Management Professionals from Oct. 21 through 23. The class’s aim was to give firm leaders more tools to handle the myriad law industry changes, the personnel they must bring through those changes, and the stress that all of that combined can put on a person. The two-day workshop offered two tracks for attendees to develop these skills: Change Agent and Soft Skill. I chose the Change Agent track because I felt it was the most pressing issue as law firms adjust to a rapidly changing technological landscape vis-à-vis client demands.
First, Debbie Foster of Affinity Consulting kicked off the event with a trenchant lesson on mindful leadership complete with a group breathing exercise— (relearning how to breathe was crucial to her talk)—and an inspirational country rock song to close. These somewhat awkward bits aside, Foster nailed it when she talked about how patience and empathy are key to being a mindful leader. “Connect with people, know their stories, talk about what’s on their cubicle walls,” Foster said. “We need to pay attention.” When you start with empathy, you begin to listen—and that will eventually lead you to the truth. Another valuable insight from Foster’s talk was rekindling the practice of simply doing one thing at a time. We’re so often busy spinning plates that we forget to accurately and delicately handle what’s in front of us, leading to unforced errors, ticked off attorneys, disengaged employees, or lost time. And what does all that lead to? More plates to spin. All of this, however, can be mitigated by being mindful of how you show up. Whether to the office, a party, or just home to your family, becoming mindful, grateful, and taking a pause to reflect when you arrive is paramount to your effectiveness as a leader. Judging by my fellow attendees in the room, it seems like we all had the tendency to forget this once and a while. We can be excused; sometimes it seems like every little problem is thrown at our feet.
After this pep session, a group of us followed Foster to her talk on Cultivating an Innovative Organization. Jumping off from her mindfulness lesson, Foster took a deeper dive into the steps needed to bring a firm from ground zero to innovative acceptance. To start an innovation moment, Foster pointed out, you need to pick a project that matters, especially since non-lawyer led innovation is prohibitively more difficult. “A technology solution is a great way to launch a new innovation project,” Foster emphasized.
A wonderful tool for cultivating innovation is a “friction” list. That is to say, we should be documenting and becoming sharply aware of all the problems, pressure points, and nagging inefficiencies that we see in our firms and formulating plans to address them. Workplace friction, whether personnel or workflow related, tells us that something is wrong and that innovation is needed to improve balance.
The next day, Amy Gwin talked about how to create an Aligned and Inspired Organizational Culture and how culture, the beliefs and behaviors of your people, is really the firm’s “operating system.” Culture, she said, is a strategic imperative and is as important as any other organizational strategy.
Judy Hissong of Nesso Strategies then picked up the Agent Change volley to dissect Strategic Change Management, a session focused on honing in cultural change in order to manifest meaningful change within the firm. The bulk of the session focused on dealing with the recalcitrant people with whom we’re all too familiar. Getting your people to that transformative state takes cunning and guile and there are four quadrants to go through to get there: Deny, Resist, Explore, and Commit. “Whenever you hear someone say, ‘remember the good old days?’, you know that’s a person in Deny,” Hissong asserted.
One of the underlying themes of the Master Class was that the nature of cultivating innovation and change in firms is often fraught with obstacles, hindrances, and doubts. While the tools to handle these headwinds are available, the most important thing is a leader’s mindset. Getting to the right mindset means learning to be present and facing the difficulties that lie ahead. Such is the so-called Stockdale Paradox—where confronting reality is the only viable means to successfully changing it. In the class’s closing session Hissong related such a paradox she faced by telling us a story about the time she was playing competitive volleyball for the United States. She wasn’t sure where she fit in, she felt outclassed by her teammates, and she had to watch her team struggle to start the tournament. Yet, by maintaining a positive attitude, accepting where she was, and coercing her teammates to confront some unhappy truths, the team was able to turn things around and start winning. “Your job is to better the ball that’s hit to you,” Hissong said.
When the people of Seattle had to rebuild, they had to face some harsh truths. No longer could they build everything out of pines and firs; they shifted to the more labor-intensive brick and mortar. The fire department was professionalized. Private water suppliers were abandoned in favor of a municipally-owned water system to ensure enough water pressure ran through pipes and hydrants. They knew what they had to do, they had the people and resources to do it, and used good civic planning to bring it to fruition. Now the Emerald City stands as a world-class metropolis on the cutting edge of tech, aviation, e-commerce and, of course, coffee.
Similarly cultivating change in business requires the combination of vision, skills, incentives, resources, and good planning to make it a viable success. This is the Knoster Model for Managing Complex Change that Hissong shared with us. Sometimes, a good crisis--or “fire”, as they say--pushes us to lead and innovate for nothing else than self-preservation. But crises aren’t fun, and the stresses multiply when we’re being reactive rather than proactive. As firm leaders we’re asked to better the ball that’s played to us, no matter how errant, lazy, or lousy. All of that’s out of our control. What matters is how we show up and identify the problems, the friction, that holds our firms back and risks our growth and optimization. The art is to figure this out before things get out of hand. Otherwise, you’re just waiting for the hot glue to boil over.
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Maximizing Today's Mobile Legal Workforce
By:
Jamy J. Sullivan, JD
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In today’s competitive hiring environment, recruiting highly skilled legal professionals remains a priority. In response, many law firms and companies are emphasizing alternative work arrangements to attract the industry’s best talent.
Flex time, not face time
It used to be that ambitious legal professionals were expected to spend long hours in the office to demonstrate their commitment to their work. Today, more attorneys and paralegals are seeking flexible hours, including working from home or the local coffee shop. While they’re still logging in long hours, this generation of legal professionals doesn’t feel the need to be tethered to a physical desk in the office.
In a recent survey by our company, nearly 6 in 10 lawyers (58%) cited flexible scheduling as the top policy to help them strengthen work-life balance. Remote work arrangements ranked second in the survey, with 57% of the response. Nearly 7 in 10 respondents (68%) said that the number of lawyers at their law firms/companies who work remotely has significantly or somewhat increased in the last 12 months.
As the number of legal professionals who telecommute increases, many employers are reducing the physical size of their offices, reconfiguring workspaces and becoming more creative with design. Traditional office space is being reduced in many cases in favor of more open work areas that enhance collaboration and teamwork.
Encouraging balance, improving job satisfaction
Work-life balance perks also are playing a more significant role in retention. Employees consistently cite flexible scheduling, telecommuting and time-off policies as the top reasons to remain with an employer. Law firms and corporate legal departments can promote work-life balance in a variety of ways to improve employee productivity and job satisfaction. Here are seven tips:
1) Ask for employees’ input – Have legal team members complete a survey to identify work-life balance factors they consider most important. Request suggestions on changes they believe would enable them to more successfully manage career and personal priorities. And importantly, regularly include work-life balance issues as a topic in meetings and review sessions so you can adjust policies as needed.
2) Recognize that work-life balance means different things to different people – Employees often have different perspectives regarding balancing career and personal goals. While many professionals value flexible work hours, others may consider the ability to work from home as their highest priority. With each individual, discuss what you can do to help support them in striking a good balance to address their needs.
3) Embrace flexible work alternatives – Employees consistently rate flexible work arrangements as key to achieving work-life balance. Offer a range of flexible options – such as compressed work week, remote work opportunities, reduced hour requirements, job sharing, non-partner-track positions, flexible personal days and vacation time; also, be understanding and flexible when employees request time off to manage responsibilities outside of the office.
4) Encourage more efficient work practices – Arm your legal team members with tech resources that aid with routine tasks, increase collaboration and facilitate remote work arrangements.
5) Put a premium on healthy activities – Encourage employees to take short breaks; provide health and wellness resources to workers, such as access to fitness facilities or gym memberships or stress or time management training programs.
6) Manage burnout quickly – Recognize the warning signs of employee burnout, such as irritability, recurring sick days, decreased productivity or diminished quality of work. Immediately address the situation by encouraging the individual to take time off to refresh and implement changes to mitigate chances of future burnout. Also, consider alternative staffing solutions, such as hiring consultants or contract personnel to reduce workload pressures for the entire team.
7) Walk the talk – Managers should model work-life balance behaviors. When you encourage employees to disconnect from work activities when out of the office, you need to do the same. When you
take vacation time and totally unplug, it shows staff that it’s appropriate for them to do likewise. Lead by example and demonstrate that you value and respect employees’ personal time off.
These workplace trends reflect the need for the legal profession to remain nimble and responsive to client needs. As law firms and corporate legal departments realize, their future success depends largely on their ability to adapt to a changing business landscape.
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Legal Levity | Holiday Drink Recipes and Fun Facts
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'Tis the season to be jolly! Check out these drink recipes submitted by your friends here at ALA Chicago!
Homemade Eggnog
By Michael C. James, friend of ALA and shared by Ken Koehn
1 Dozen Eggs
1 Quart Whipping Cream
1 1/2 Cups Sugar
1 Pint Bourbon or Brandy
- Separate eggs in large container. Beat the yolks and add sugar until creamy.
- Add liquor of choice slowly, mixing well. I prefer bourbon. One pint is too much; I usually use somewhere around a cup.
- Whip cream slightly. This determines the thickness of the nog. I like the texture to be thick, but drinkable.
- Stir cream into mixture. Whip half the egg whites and fold into mixture. Pour into large container (gallon jug if possible) and chill well.
- Sprinkle with ground nutmeg when serving.
- The excess egg whites are perfect for making meringue.
Remember to always taste while preparing the nog. It helps induce the holiday spirit!!!
Santa's Nightcap
Kristina Becvar’s favorite holiday drink
8 chai tea bags
4 cups milk
2 inch piece of fresh ginger
1 1/2 cups bourbon
- Bring 6 cups of water to a boil in a large pot.
- Remove from the heat, add the tea bags, cover and let steep for 15-30 minutes.
- Remove the tea bags and stir in the milk, and honey. Place the pot over medium heat.
- Add the cinnamon sticks and ginger, cook stirring often until the mixture is steaming. Stir in the bourbon.
- Ladle the drink into mugs. Dust with cinnamon if desired. Drink up!
- Alternately, you can chill the cocktail and serve cold over ice.
Favorite RumBall
Shared by Jeff Schlenski
Equal parts RumChata and Fireball
- Mix equal parts of each in a mixing glass or rocks glass.
- Stir with ice.
- Sprinkle a little cinnamon on the top and sip it!
Eggnog with a Twist
Shared by Cindy Stahler
16 oz Oberweis Eggnog
2 oz Grand Marnier
- Mix together chilled and serve!
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Want a little more holiday cheer?
Check out these amazing facts about Christmas, courtesy of Alexandra Libina, of
PastBook
:
“Jingle Bells” was written for Thanksgiving, not Christmas.
The song was written in 1857 by James Lord Pierpont and published under the title “One Horse Open Sleigh”. It was supposed to be played in the composer’s Sunday school class during Thanksgiving as a way to commemorate the famed Medford sleigh races. “Jingle Bells” was also the first song to be broadcast from space.
Rudolph’s red nose is probably the result of a parasitic infection
of his respiratory system. According to Roger Highfield, the author of the book “
The Physics of Christmas: From the Aerodynamics of Reindeer to the Thermodynamics of Turkey
” the world’s most famous reindeer has a red nose due to a parasite. However, Rudolf’s relationship with his parasite is symbiotic: after all, the red nose illuminates the path through the winter night for the whole reindeer team.
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Larry Fujara | Inaugural Recipient of the
ALA Chicago Lifetime Achievement Award
By: Mike Motyka
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In recognition of Larry Fujara’s 32 years of outstanding service to the chapter (and counting!), we presented him with the first ever ALA Chicago Lifetime Achievement Award at the November Bi-Monthly Luncheon. The Board of Directors created this award as a way to recognize chapter members whose commitment to professionalism, dedication to the advancement of the legal management profession, and record of long-term service set the standard for all who aspire to achievement, excellence and success. It was obvious to all of us that Larry should be the first recipient of this award, which was well earned over more than three decades of exceptional work advancing our profession through mentoring and counseling of others, and by developing new and novel approaches in educational programming and knowledge sharing.
Larry has a long and distinguished record of service and leadership in the Chapter in a number of different positions and capacities over an extended period of time. Larry Fujara first joined both the ALA Chicago Chapter and the Law Office Managers Association of Chicago (LOMAC) back in
1987
. In
1988/89
, he helped organize the first Chicago Vendor Expo held in Katten Muchin’s conference rooms. This event has continued ever since, and is now known as the Bi-Annual Conference. In
1989
, Larry put together the first annual Chicago Salary Survey. He has served continually on the Salary Survey Committee since its founding in 1989. In
1990
, as President of LOMAC, Larry collaborated with Bruce Weisseg (President of ALA Chicago) to merge the two organizations. This combination established healthy financial resources and a critical mass of member enthusiasm for the Chicago Chapter that served as the foundation for our sustained success over the past thirty years.
In
2002
, Larry served as President of ALA Chicago and has been on the Board almost continually through March of this year, with only two short breaks, and has frequently been a member of the Board’s Financial Reserve Committee. He helped formed our Midsize Law Firm group, the first of the many networking groups that now form the basis of much of our member engagement.
Larry Fujara has continually been a source of innovation and creativity throughout his
33 years
in the chapter. He has played a key role in wide range of successful initiatives. Here are some recent examples:
- The Pop-up Education Sessions, which we put together quickly around fast moving topics of the moment like the #MeToo Movement and GDPR.
- Incorporating business partners more fully into our educational programming, such as our Real Estate Law Office Tours.
- Panel presentations by law firm and business partner experts, such as our Financial Analytics Panel.
- And our wildly successful 40th Anniversary Dinner!
Over the years, Larry has made a priority of appreciating and enjoying the company of his fellow chapter members and business partners. Whether it is sharing a laugh over a drink or answering a question about a work issue, he always makes you feel important. Through those countless personal connections and social interactions Larry has helped forge our incredible ALA Chicago community.
Larry has been an inspiration to us all - his sustained and energetic commitment to excellence and innovation is legendary! We all look forward to many more years of creativity, collaboration and celebration with Larry!
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Sweeping New Illinois Law Mandates Sex Harassment Training, Restricts Use of Arbitration and Non-Disclosure Agreements and Much More
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On August 9, 2019, Illinois Governor J.B. Pritzker signed into law a sweeping piece of legislation, SB 75, enacted as
Public Act 101-0221
(“SB 75”). Among other measures, SB 75 (i) imposes a sexual harassment training requirement on
all
employers with employees working in Illinois, (ii) places tight restrictions on the use of mandatory arbitration agreements and non-disclosure clauses in employment contracts and settlement agreements, (iii) significantly expands the rights of certain non-employees under the Illinois Human Rights Act (“IHRA”), (iv) imposes a reporting requirement on employers with respect to certain sexual harassment and discrimination rulings and judgments, and (v) extends job-protected leave to victims of gender violence. These provisions become effective January 1, 2020, except for the reporting requirement, which goes into effect on July 1, 2020.
The Sexual Harassment Training Mandate
Among other provisions (discussed below), SB 75 amends the IHRA to require employers
with any employees working in Illinois
to provide annual interactive sexual harassment prevention training to their employees using either a model program that will be provided by the Illinois Department of Human Rights (“IDHR”) or a program of the employers’ choosing that meets or exceeds the criteria set forth in the IHRA, as reflected in the IDHR model training.
SB 75 expressly requires that the mandatory training (i) be interactive, (ii) explain and provide examples of sexual harassment, (iii) summarize relevant federal and state law and remedies available to victims of sexual harassment, and (iv) describe the employer’s responsibilities under applicable law. SB 75 permits online as well as in-person training but does not mandate a minimum duration for the training. Employers in the restaurant and bar industry must also supplement the mandatory training with a program—either their own or a supplement to
be created by the IDHR—addressing harassment issues specific to the industry.
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Susan Gross Sholinsky
Epstein Becker Green
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Amardeep K. Bharj
Epstein Becker Green
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Michelle G. Marks
Epstein Becker Green
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Employment Law Update | Anne Mayette
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With the election of a new democratic governor in Illinois, 2019 saw significant legislative changes to the employment laws in the State. This makes it difficult for many employers to keep up with all their obligations under the ever-evolving laws. Several significant new laws will go into effect on January 1, 2020 which will change the way employers operate. Several important changes which apply to firms and companies of all sizes should be noted.
Illinois Workplace Transparency Act
On August 9, 2019, Governor J.B. Pritzker signed the Illinois Workplace Transparency Act (WTA) which amends multiple state laws that affect Illinois employers or employers whose employees work in Illinois. Below is a brief overview of the more significant provisions of this omnibus legislation.
Non-disclosure and disparagement provisions in employment agreements
The WTA bars agreements that prevent former, prospective, or current employees from reporting to federal, state or local authorities unlawful conduct, including criminal conduct and unlawful employment practices, such as sexual harassment, discrimination, and retaliation. Additionally, the WTA bars the use of unilateral non-disparagement and non-disclosure agreements that demand confidentiality relating to discrimination, harassment and retaliation as void and against public policy.
The WTA permits, however, parties to enter into mutual agreements that “include provisions that would otherwise be unilateral and against public policy” only if the agreement: (1) Is in writing; (2) Demonstrates equal, actual, knowing, and bargained for consideration from both parties; and (3) Acknowledges the employee’s right to report good faith allegations of unlawful employment practices and criminal conduct to authorities, to participate in proceedings with enforcement agencies, to make truthful disclosures required by law, and to request and receive legal advice.
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2019 Annual Holiday Party Aboard the Chicago Elite!
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Employer Insights: Illinois’ Permanent Commitment
to Medical Marijuana
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Illinois Governor Pritzker signed legislation on August 9,2019 amending the state’s current medical marijuana pilot program. The Compassionate Use of Medical Cannabis Program Act (the “Medical Cannabis Act”) makes the medical marijuana program, which was initially enacted as a pilot program in 2013, permanent and expands the qualifying medical conditions for a medical marijuana card to include at least 12 new conditions, including chronic pain, irritable bowel syndrome, migraines, osteoarthritis, and ulcerative colitis. The Medical Cannabis Act also provides easier access to a medical marijuana card by expanding the range of medical professionals who can certify eligibility of applicants to the program. In addition to physicians, advanced practice registered nurses or licensed physician assistants can diagnose and certify an individual’s eligibility for the medical marijuana program. The amendments to the medical marijuana pilot program are effective immediately.
The Medical Cannabis Act continues to protect the status of a registered medical marijuana cardholder and prohibits an employer from discriminating against a cardholder based on his or her status as a registered qualifying patient of medical marijuana. However, employers may continue to take into account an employee’s medical marijuana cardholder status, if failing to do so would force the employer to violate federal law, such as the Department of Transportation regulations or the provisions of the Drug Free Workplace Act.
The Medical Cannabis Act does not change the express workplace protections previously included in the state’s medical marijuana pilot program. Employers should be able to continue to enforce zero-tolerance or drug free workplace policies, discipline a cardholder for violating a workplace drug policy, and discipline an employee based on a good faith belief that an employee is impaired at work. Similar to Illinois’ recreational marijuana law (the Cannabis Regulation and Tax Act) which takes effect January 1, 2020, if an employer disciplines a marijuana cardholder based on its good faith belief of impairment, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
However, employers should be aware that they may need to engage in an interactive process to determine whether they are able to accommodate an employee’s off-duty use of medical marijuana. Recent rulings in federal and state courts outside of Illinois have found that, depending on the language of the state’s anti-discrimination or medical marijuana statutes, the use of medical marijuana may be a reasonable accommodation for an employee, when the use occurs outside of working hours and does not adversely affect safety or job performance. The Illinois Human Rights Act prohibits employment practices that discriminate on the basis of a person’s actual or perceived disability, if the disability is unrelated to the person’s ability to perform the job in question. Thus, for example, if an employee contests his employer’s impairment determination by informing his manager that he has a medical marijuana card for migraines, his employer may need to engage in the interactive process prior to taking a disciplinary action.
By legalizing recreational marijuana use and expanding the medical marijuana program, marijuana use in Illinois is likely to become more prevalent, and employers can expect an increase in marijuana-related issues to infiltrate the workplace. Accordingly, Illinois employers should take steps now to ensure they are ready to address marijuana-related issues in the workplace. Some actions for employers to consider include:
- Review and update workplace drug policies to ensure employees are on notice of prohibited workplace conduct and the disciplinary action and process for violating the policy. The policy should include a written procedure for employees to be able to contest a cannabis-based disciplinary determination. In addition, for employment policies that cover employees in multiple states, consider whether to include state-specific information relating to Illinois’ medical and recreational marijuana laws effect on Illinois-based employees. Similar information may be required to tailor specific language for employees in other states that have their own recreational and/or medical cannabis regulations to ensure that employees clearly understand the state-specific cannabis regulations and the Company’s workplace drug policies.
- Review and update reasonable accommodation policies, as employers may need to engage in an interactive process and make an effort to accommodate an employee’s off-duty use of medical marijuana.
- Train supervisors on how to recognize, properly document and promptly report the signs of suspected marijuana impairment. Illinois’ medical and recreational marijuana laws provide specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana, including the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the employee’s own safety or the safety of others, involvement in any accident resulting in serious damage to equipment or property, disruption of a production or manufacturing process, and carelessness that results in any injury to the employee or others. This training will help establish that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful. This training should also include reminders that company policy must be applied in a nondiscriminatory manner.
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James Oh
Epstein Becker Green
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Kathleen A. Barrett
Epstein Becker Green
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Illinois Employers Can Prepare To Take
Cannabis-Based Disciplinary Actions
By: Kathleen A. Barrett
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It is a snowy January day in Chicago, recreational marijuana is now legal, and one of your employee’s, Mary Jane, is sleeping at her desk, with a strong scent of marijuana emitting from her sweater. How can an Illinois employer prepare to address Mary Jane’s conduct this January?
The Illinois Cannabis Regulation and Tax Act (the “Cannabis Act”) dedicates an entire section, Section 10-50, to things that employers can do under the Cannabis Act to protect itself and address an employee’s at work impairment, including:
- An employer may still have “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis on the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”
- An employer can still discipline or terminate an employee for violating an employer’s workplace drug policy or employment policies.
- An employer can discipline an employee based on a good faith belief that an employee is under the influence or impaired. The Cannabis Act identifies a number of symptoms an employer can consider to support its good faith belief of impairment. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
Using the express protections set forth in Section 10-50 as a guide, employers can consider the following action items to prepare for the effective date of the Cannabis Act and build support to take a cannabis based disciplinary action against Mary Jane.
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