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Advantages of Arbitration Agreements in Commercial Transactions

Oftentimes, private arbitration is the preferred method of resolving commercial disputes, including disputes with employees and customers. Because arbitration is a creature of contract—i.e., only parties that agree to resolve disputes by arbitration are required to do so—determining whether to include an arbitration clause in a contract requires careful consideration during the negotiation of a transaction.  Including an arbitration agreement in your contract is generally advantageous because:

  1. The arbitrators are usually selected from a finite list of individuals, usually for their special expertise in a particular area.
  2. Relaxed rules of pleading, discovery, and evidence generally make it easier, less time-consuming, and thus less expensive to present your case.
  3. An arbitration can be scheduled, conducted, and concluded more quickly and conveniently than in court.
  4. An arbitration can be privately held, without public scrutiny, and transcripts of sworn testimony or other proceedings are not made public except by agreement.
  5. For defendants, there is usually less chance of a “runaway verdict” because a jury does not decide the case.
  6. The arbitrator generally will focus on the merits of the case and will make a decision based upon a fair view of the totality of the evidence submitted, which means there is less chance of a harsh result based on a technicality or procedural fluke.

Because both sides theoretically can agree to arbitration at any time during the dispute, even after a lawsuit has been filed by one of the parties, what is the advantage to having an arbitration clause in your contract? The real advantage to having an agreement to arbitrate disputes prior to the time the disputes actually arise is the ability to force the other side to arbitration even if they do not want to go, or to force them to abide by a particular procedural rule.  Before you put that arbitration clause in the contract, however, you have to make a judgment call as to whether it is more likely than not that you will want to arbitrate, or force the other side to accept any particular rules or procedures for the arbitration. Even if you draft an airtight arbitration agreement or procedural rule, you should first think through what the ramifications would be if, when a dispute actually arises, you were to find yourself on the wrong end of your own arbitration clause.  Arbitration clauses in commercial contracts should not simply be boilerplate, but rather, should be tailored to your business, industry, or particular transaction.  Because many factors go into your decision to include an arbitration clause in your standard or specially negotiated contract, it is vital that you consult with an attorney who understands your business and the nature of possible disputes that may arise.

For more information regarding arbitrating commercial disputes and tailoring an arbitration clause to best meet your needs, please contact Howard L. Teplinsky at hteplinsky@lgattorneys.com or (312) 368-0100.

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California is Serious About Privacy – Does Your Business Have a Roadmap to Comply with California Law?

By now, many companies who do business with California residents are familiar with the California Consumer Privacy Act of 2018 (“CCPA”), which became effective on January 1, 2020. The CCPA is one of the most comprehensive privacy laws in the country. Despite some familiarity with its requirements, compliance with the CCPA brought many challenges for business owners and their management teams. Violations of the CCPA can be extremely costly — up to $7,500.00 per intentional violation and $2,500.00 per unintentional violation.

Under the CCPA, businesses that collect personal data from any California resident must meet several obligations:

(1) posting a Privacy Notice on the business’s website;
(2) providing account verification;
(3) to not sell personal data pertaining to children;
(4) providing timely responses to residents’ requests that the business delete their personal information or provide residents with information concerning what personal information the business has collected relating to that resident; and
(5) providing timely responses to residents’ requests that the business not sell the resident’s personal data.

Shortly after the CCPA’s effective date, the California legislature passed the California Privacy Rights Act (“CPRA”) on November 3, 2020. The CPRA will become effective January 1, 2023 and will apply to all personal data collected by a business on or after January 1, 2022, with certain exceptions.

Among other things, the CPRA added obligations to the CCPA pertaining to:

(1) Sensitive personal information;
(2) Automated decision-making;
(3) Consumer profiling; and
(4) The formation of the California Privacy Protection Agency.

As if compliance with the CCPA and CPRA are not enough to pose significant challenges for businesses who serve California residents, numerous other California laws pertain to privacy and data security, such as the California Data Breach Law, the California Online Privacy Protection Act, the Shine the Light Law, and the California Invasion of Privacy Act.

If you are a business owner who does business with California residents and need assistance navigating the expansive and ever-changing legal landscape of privacy law, please contact Natalie A. Remien at nremien@lgattorneys.com or (312) 368-0100.

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Business Owners Beware – Illinois has Expanded the Recoverability of Pre-Judgment Interest

It is rare if a business has not experienced a bodily injury claim such as a slip-and-fall in a retail store, or an accident at a construction site. In Illinois, those claims are ordinarily governed by common law negligence principles. An injured party who prevailed at trial was entitled to recover medical expenses, loss of earnings, pain and suffering, loss of normal life, disfigurement, increased risk of future harm, and 9% annual post-judgment interest—but not pre-judgment interest.

That has changed, and businesses should be aware that an injured party can now recover pre-judgment interest pursuant to a recent amendment to Illinois’s Prejudgment Interest Statute, 735 ILCS 5/2-1303, which took effect on July 1, 2021. Now, pre-judgment interest on bodily injury claims begins to accrue at the rate of 6% annually “on all damages, except punitive damages, sanctions, statutory attorney’s fees, and statutory costs” on the date the lawsuit is filed. Significantly, only private businesses are on the hook for pre-judgment interest, as governmental entities have been expressly excluded.

Business owners should be concerned about this new law. While not all bodily injury claims have merit, of course, the statutory amendment puts business owners in a precarious position. If a business seeks to contest a bodily injury claim that it believes is meritless, it has a proverbial “Sword of Damocles” hanging over its head because pre-judgment interest is now recoverable in addition to all other damages. The amount of interest can be significant, since bodily injury claims can take years to reach trial. In essence, the amendment can be viewed as taxing a business that is merely exercising its right to contest a claim.

Thus, it is expected that the recoverability of pre-judgment interest in bodily injury claims may force more businesses to consider settling claims that they otherwise would have taken to trial before a jury. Additionally, businesses should confirm that their insurance policies extend coverage to awards of pre-judgment interest under the new statute.

If you have questions regarding the impact of these claims on your business, or whether your business has the appropriate insurance coverage in place, please contact Roenan Patt at rpatt@lgattorneys.com or (312) 368-0100.

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Champlain Towers South: A tragic case study in the pitfalls of condominium association management

Owning a condominium may seem like an easy alternative to home ownership. Maintenance costs are spread among the condominium associations’ units, a board manages the condominium association’s affairs for the other association members, and a property management company might even handle the association’s day-to-day issues. After all, board members are generally volunteers who have other, full-time occupations.

But the June 24, 2021 collapse of the Champlain Towers South condominium building in Surfside, Florida should be a gut-check to every condominium owner nationwide. A condominium association does not run itself.

Immediately following the tragedy, conflicting stories arose—stories that are familiar to any experienced condominium owner. In September 2019, facing substantial special assessments and unhappy unit owners, five of the seven condominium board members resigned. One board member cited a pattern of “ego battles, undermining the roles of follow board members, circulation of gossip and mistruths.” The association reportedly had less than $800,000.00 in reserves, but needed to fund more than $15,000,000.00 in repairs. The board had asked condominium unit owners to pay special assessments ranging from $80,000.00 to $200,000.00, but reports show that many condominium unit owners balked at the repair project’s scope and cost.

Condominium board members must understand their duty to act in every association member’s best interests. And condominium association members can only hold board members accountable if the members actively engage in their association, which starts with attending every quarterly meeting. There, the board should make clear what actions they have taken over the past months, and present the issues that the association expects to face in the future. Association members should also understand a building’s history. The Illinois Condominium Property Act requires condo boards to maintain the association’s records, such as by-laws, meeting minutes, and receipts for all expenditures. And every association member must know they have the right to review those records.

Associations must also lean on their professionals. For instance, a board can spend hundreds of thousands of dollars trying to address water leaks before realizing they should have hired an engineer to comprehensively examine the root of the problem. And boards who try to deal with “problem unit owners” without understanding the rules binding the association can easily mire the association in lawsuits and a toxic living environment.

There is no doubt that the Champlain Towers South condominium association faced unique challenges leading to one of the deadliest building collapses in American history, but most condominium association face one or more similar challenges at any given time.

If you are a condominium unit owner, board member, or property manager who needs assistance navigating these issues, feel free to contact M. Reas Bowman at rbowman@lgattorneys.com or (312) 368-0100.

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Illinois Employers Should Think Twice Before Using Criminal Background Checks Going Forward

On March 23, 2021 Governor Pritzker signed into law Senate Bill 1480 which makes several meaningful changes to the Illinois Human Rights Act (“IHRA”). One significant change under the new law is that employers may not use criminal records when making employment decisions unless they consider specific factors and take certain steps before making a final employment decision. The law goes into effect immediately.

Employment Decisions Based on a Conviction Record Violate the IHRA

It is now a violation of the IHRA to “use a conviction record” as a basis for any employment-related decision, unless the employer can establish either:

  • there is a “substantial relationship” between the criminal conviction and the employee’s job; or
  • hiring or retaining the employee would create an “unreasonable risk” to a specific individual or the public.

To determine whether an “unreasonable risk” exists, employers must consider “whether the employment position offers the 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.” Accordingly, in evaluating whether an “unreasonable risk” exists, employers must evaluate the following six factors:

  1. the length of time since the conviction;
  2. the number of convictions that appear on the conviction record;
  3. the nature and severity of the conviction and its relationship to the safety and security of others;
  4. The facts or circumstances surrounding the conviction;
  5. the age of the employee at the time of the conviction; and
  6. evidence of rehabilitation efforts.

Interactive Process

If an employer determines that one of the two exceptions applies, the employer must engage in an interactive process with the employee or applicant. The employer is required to notify the employee or applicant in writing of its preliminary decision that the employee’s conviction record disqualifies the employee. This notice must include:

  1. notice of the conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
  2. a copy of the conviction history report, if any; and
  3. an explanation of the employee’s right to respond to the employer’s preliminary decision before it becomes final. This explanation must inform the employee that the response may include “submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.”

Upon receipt of the employer’s notice, the employee has up to five business days to provide a response before the employer makes a final determination.

Written Final Decision

Before making a final decision, the employer must consider any information submitted by the employee. If the employer determines that the employee or applicant is disqualified “solely or in part because of the employee’s conviction record,” the employer must provide another written notice to the employee. The second notice must include the following:

  1. notice of the conviction or conviction(s) that are the basis for the final decision and the reasoning for the disqualification;
  2. any existing procedures available to the employee to challenge the decision or request a reconsideration; and
  3. a statement that the employee has the right to file a charge with the Illinois Human Rights Department.

Practical Considerations

Illinois employers should reconsider how they will use criminal background checks in the future. While the law does not prohibit an employer from obtaining criminal background checks, it places a significant burden on employers if they want to use this information to make employment-related decisions.

Given the burdensome notice obligations, it may be more practical for employers to forego the use of criminal background checks altogether, unless there is a particularly compelling business reason for doing so. Due to the complexities of this decision, employers should discuss this matter with their employment lawyer. If an employer intends to continue using criminal background checks, it will need to implement appropriate procedures and policies to ensure compliance with the new law.

For additional help navigating these issues, feel free to contact Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at wlawrence@lgattorneys.com, or Joseph A. LaPlaca, an associate attorney at Levin Ginsburg, at jlaplaca@lgattorneys.com.

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Lapsed UCC Filing Cannot Be Revived by a Continuation Statement

The importance of perfecting a security interest by filing a UCC-1 financing statement cannot be understated. Likewise, making sure the UCC-1 financing statement is accurate and has not lapsed is just as important. The case of Committee of Unsecured Creditors of Rancher’s Legacy Meat Co. v. Ratliff emphasizes the importance of ensuring that a UCC-1 financing statement is accurate and has not lapsed.

In Ratliff, James Ratliff provided loans to his business partner to form Unger Meat Company in 2010. Ratliff secured his loans through obtaining a security interest in Unger’s equipment, inventory, accounts receivable, furniture and fixtures. Ratliff perfected his security interest by filing a UCC-1 financing statement. On May 6, 2014 Unger changed its name to Rancher’s Legacy Meat Co. Ratliff failed to timely amend his UCC-1 financing statement to reflect the change in the company name and the UCC-1 financing statement lapsed. Even though Ratliff’s original UCC-1 filing lapsed, he filed two separate UCC-3 amendments in an attempt to protect his security interest.

In 2019, Ratliff began collection proceedings on his loans. Rancher’s Legacy Meat Co. filed for Chapter 11 bankruptcy in response to Ratliff’s attempt to collect on his loans. Ratliff asserted what he believed was priority in collection of his security interest. In response, the Committee of Unsecured Creditors argued that Ratliff did not have a valid security interest because his UCC-1 financing statement lapsed and so did his security interest. The Committee also argued that Ratliff’s subsequent UCC-3 amendments were invalid because they could not continue a security interest that no longer existed. The bankruptcy court agreed with the Committee, holding that Ratliff was an unsecured creditor and not entitled to adequate protection payments.

Ratliff emphasizes the importance of not only filing a UCC-1 financing statement to perfect a creditor’s security interest, but also making sure amendments are timely made so that the security interest does not lapse. If you require any help navigating UCC issues, feel free to contact Michael L. Weissman, an attorney in the commercial law practice at Levin Ginsburg, at mweissman@lgattorneys.com or any of our business attorneys.

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COVID-19, Return to Work, and Data Privacy Guidance

As the COVID-19 vaccines are currently being distributed, employers must address various issues relating to the transition of employees back to the office.  Below is a quick general guide concerning what employers can and cannot ask their employees concerning COVID-19:

 

Can an employer take an employee’s temperature?

Yes. Generally, measuring body temperature is a medical examination.  Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.

Can an employer ask an employee if they have had COVID-19?

Yes. Employers may ask all employees who will be physically entering the workplace if they have had COVID-19 or symptoms associated with COVID-19, as well as ask if they have been tested for COVID-19.

Can an employer ask an employee if they are having COVID-19 symptoms?

Yes.  During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus.

Can an employer send an employee home during the COVID-19 pandemic if they have COVID or symptoms associated with it?

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

Can an employer ask an employee if any member of their household has had COVID symptoms or has tested positive?

No.  The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members.  GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.

Can an employer require employees to have a COVID-19 test?

The ADA requires that any mandatory medical test of employees be job related and consistent with business necessity. Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19, because an individual with the virus will pose a direct threat to the health of others.  Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.

Can an employer require employees to notify the employer if they test positive with COVID-19?

Yes.

Can an employer require employees to adopt infection-control practices?

Yes.  Regular hand washing, cough/sneeze etiquette and proper tissue usage and disposal may be required.

Can an employer require employees to wear PPE (masks, gowns, etc.) designed to reduce the spread of COVID-19?

Yes. An employer may require returning workers to wear personal protective gear and observe infection control practices.

Can an employer ask an employee if he or she has been vaccinated?

Yes. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a prohibited disability-related inquiry.

Can an employer require employees to have a vaccine?

Yes. Employers are permitted to encourage and even require vaccination before allowing employees to return to work. However, mandatory vaccination policies will require careful planning, training, and transparency to implement effectively and minimize risks.

Can an employer exclude employees from the workplace if they have not had a vaccine?

Yes, but only after doing an individualized assessment to determine if an employee poses a direct threat and concluding there is no other possible accommodation.

 

Record-Keeping

If an employer is currently complying with the Health Insurance Portability and Accountability Act (“HIPAA”), then it is already prepared to deal with the collection, storage, and disposal of an employee’s Personal Health Information (“PHI”) collected as a result of COVID-19.  However, the Occupational Safety and Health Administration’s (“OSHA”) most recent guidance on controlling COVID-19 encourages all employers, including non-health-related companies, to put a COVID-19 prevention program into practice.  OSHA encourages record-keeping as part of such a program.  Thus, the days of avoiding the storage of health-related data to potentially avoid record-keeping activities are seemingly over.  Certainly, employers in California must comply with California’s OSHA’s requirements concerning COVID-19.  The following table provides guidance for those employers who are not already HIPAA-compliant.

 

Can an employer store medical information it collects from employees related to COVID-19?

Yes. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.

Can an employer disclose the name of an employee to other employees when it learns that the employee has COVID-19?

No. The employer should not disclose the name of the employee who has COVID-19.  However, the CDC stated: If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA.

Can an employer keep a log of daily temperature checks before entering the workplace?

Yes, provided that the employer maintains the confidentiality of this information.

Can an employer keep records of employees who have tested positive for COVID-19?

Yes, if confidentiality is kept.  Employers should make every effort to limit the number of people who get to know the name of the employee.

Can the employer notify other employees that an employee has tested positive for COVID-19?

Yes.  The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity.

 

For almost a year since the onset of COVID-19, employers have been collecting and using data to track and trace the spread of the virus.  Employers must be vigilant when collecting and utilizing data for tracking and tracing the spread of the virus and understand the risks of unauthorized disclosure or other potential abuses of the data.

Data Privacy and Security

Employers must develop policies and procedures to collect, use, and analyze PHI that are in compliance with relevant privacy laws.  PHI, such as information that an employee has tested positive or is having symptoms of COVID-19, must be stored separately from regular personnel files and kept confidential.  If this information is stored electronically, it must be stored in a manner which limits access to the information.

Employers should consider creating a COVID-19 task force that is responsible for handing all COVID-19 related issues within the company.  This will necessarily limit the number of people who have sensitive COVID-19 information about employees.

It is important that employers discuss these issues with their data privacy attorney.  A data privacy attorney can help employers comply with the patchwork of federal and state privacy regulations, including GDPR and HIPAA, and develop systems for the storage and use of employee PHI.

This article is intended to provide generalized guidance for employers and may or may not apply to your exact situation.  If you require specific legal advice on these or related topics, or compliance with data privacy regulation that may affect your business, please contact Natalie A. Remien, a partner in the data privacy practice at Levin Ginsburg at nremien@lgattorneys.com or Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg at wlawrence@lgattorneys.com.

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Illinois Legislature Narrows Restrictive Covenant Enforcement

Restrictive covenants are contractual terms that restrict an employee’s ability to work for a competitor. Historically, these covenants were often used to prohibit high-level executives or employees with proprietary knowledge from working directly for a competitor. Today, restrictive covenants are increasingly used for even lower-level employees.

Examples of restrictive covenants are: “employee may not compete directly or indirectly with employer for a period of two (2) years after leaving the company,” or “employee may not do business within a 50-mile radius of the business after employment termination.” Under Illinois law, a restrictive covenant must be:

1. necessary to protect a legitimate business interest;
2. limited in terms of duration, geographic scope, and prohibited activity;
3. supported by sufficient consideration; and
4. ancillary to a valid employment agreement or sale of a business.

In 2016, the Illinois Freedom to Work Act (“IFWA”) was passed, which prohibited employers from implementing restrictive covenants for low-wage employees. IFWA defines low-wage employees as “an employee whose earnings do not exceed the greater of (1) the hourly rate equal to the minimum wage required by the applicable federal, state, or local minimum wage law or (2) $13.00 per hour.”

On January 8, 2021, the Illinois legislature introduced House Bill 789 (“Bill 789”), which seeks to expand the scope of IWFA as follows:

1. covenants not to compete are neither valid nor enforceable unless the employee’s actual or expected yearly earnings exceed $75,000. Every 5 years, the yearly earnings figure will increase by $5,000;
2. covenants not to solicit are neither valid nor enforceable unless the employee’s expected yearly earnings exceed $45,000. Every 5 years, the yearly earnings figure will increase by $2,500;
3. covenants not to compete are neither valid nor enforceable if the employee subject to the covenant was terminated or furloughed due to the COVID-19 pandemic. Additionally, covenants not to compete are neither valid nor enforceable if the employee is terminated or furloughed under circumstances that are similar to the COVID-19 pandemic (such “circumstances” are not defined by Bill 789) unless enforcement of the covenant includes the payment of the employee’s base salary for the period of enforcement of the covenant, minus compensation received by the employee through subsequent employment; and
4. the employer must advise its employees in writing to consult with an attorney before agreeing to a non-compete or non-solicitation clause. Additionally, the employer must supply a copy of the clause at least 14 days before execution for the employee’s review.

Furthermore, the legislature also established five components necessary for a valid restrictive covenant. A restrictive covenant is void unless:

1. the employee receives adequate consideration;
2. the covenant is ancillary to a valid employment relationship;
3. the covenant is no greater than is required to protect the legitimate business interest of the employer;
4. the covenant does not impose an undue hardship on the employee; and
5. the covenant is not injurious to the public.

If an employer seeks to enforce a restrictive covenant and fails to succeed because the covenant is deemed unenforceable, Bill 789 would require the employer to pay the employee’s reasonable attorneys’ fees and costs. Significantly, Bill 789 does not apply retroactively.

It is expected that Bill 789 will pass in some form and would go into effect on June 1, 2021. Employers should consider whether they want to implement restrictive covenants in some form prior to Bill 789 being enacted into law, as those covenants will be grandfathered in.

For additional help navigating these issues, feel free to contact Roenan Patt, an attorney in the employment and business law practice at Levin Ginsburg, at rpatt@lgattorneys.com or Joseph A. LaPlaca, an attorney at Levin Ginsburg, at jlaplaca@lgattorneys.com.

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Voluntary FFCRA Extension Through March 31, 2021

New Employee Rights Poster Required by FFCRA | COVID-19 | Martin Pringle Attorneys at Law

As Congress pushed through an additional COVID stimulus bill on the eve of the new year, it also temporarily extended the benefits afforded to employees under the Families First Coronavirus Response Act (FFCRA).

The FFCRA required employers with less than 500 employees to provide additional job protected paid leave for specific qualifying events (up to 80 hours of paid leave), and also provided up to 12 weeks of leave for parents who could not work because they needed to care for their children whose schools were closed due to COVID-19. For employers, any covered payments under FFCRA are eligible to be reimbursed to the employer by the federal government through a 100% tax credit. As a result, it is often a win-win for employers and employees – the employee gets paid, and in the end, the employer is reimbursed. The FFCRA benefits were set to expire on December 31, 2020.

On December 21, 2020, Congress did not extend FFCRA into 2021; however, they allowed employers to voluntarily continue providing paid leave benefits under FFCRA and to continue receiving the payroll tax credit through March 31, 2021. Thus, while FFCRA is no longer mandatory, employers can still provide these benefits to their employees and continue to offset their costs with the tax credit through the first quarter of 2021.

Key Takeaways for Employers

• Employers should not provide any additional leave under FFCRA to employees who have exhausted their bank of leave. The new legislation did not restart an employee’s entitlement to leave.

• Any FFCRA benefits taken in 2020 by employees will be applied to their leave bank in 2021. For example, if an employee used 48 hours of emergency paid sick leave in 2020, they should only be entitled to use an additional 32 hours.

• Employers will not be eligible to receive tax credits for any amount of paid leave that is greater than what employees are entitled to under FFCRA.

• If an employer provides voluntary FFCRA benefits in 2021, such leave is job protected and employers may not retaliate against an employee who takes such leave.

• Employees who took leave in 2020 are still protected by FFCRA’s anti-retaliation and anti-discrimination protections.

• If an employer provides FFCRA benefits in 2021, it is important to maintain proper documentation in the event of an IRS audit regarding the tax credit.

• If an employer chooses not to continue to offer paid leave under FFCRA, employees may choose to show up to work regardless of having COVID-19 symptoms to avoid missing a paycheck.

Employers should assess whether to continue offering FFCRA benefits and update their policies and practices accordingly. As with any policy change, employers should communicate these changes to their employees.

For additional help navigating these issues, feel free to contact Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at wlawrence@lgattorneys.com, or Joseph A. LaPlaca, an attorney at Levin Ginsburg, at jlaplaca@lgattorneys.com.

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Illinois Employers Must Complete Mandatory Sexual Harassment Training Annually

As a result of recent amendments to the Illinois Human Rights Act (IHRA), employers in Illinois are required to provide annual sexual harassment training to employees who (1) work in Illinois, (2) may perform work in Illinois, or (3) regularly interact with Illinois employees. Employers have largely ignored these new requirements in the wake of the ever-changing environment created by COVID-19, but there is still time to comply. The training must occur on or before December 31, 2020. To help our clients comply with the law, Levin Ginsburg has been providing updated sexual harassment training to its clients virtually.

The Illinois Department of Human Rights provided a model PowerPoint program that employers can use to comply with the law. However, many employers prefer to offer their own training tailored to their business and policies. The law allows employers to use their own training, provided it meets or exceeds the statutory standards. At a minimum, the training must include:

• an explanation of sexual harassment consistent with the IHRA;
• examples of conduct that constitutes unlawful sexual harassment;
• a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
• a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.

If your business is a restaurant or bar, the statute provides additional requirements, including providing each employee a written sexual harassment policy. Illinois recently issued a model training program for restaurants and bars, and this additional training must include the following additional topics:

• specific conduct, activities, or videos related to the restaurant or bar industry;
• an explanation of manager liability and responsibility under the law; and
• English and Spanish language options.

As the December 31, 2020 deadline is quickly approaching, it is important for employers to take steps to meet their obligations imposed by Illinois law. If you have questions about how Levin Ginsburg can help you conduct this training virtually for your employees, please reach out to

Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at

312-368-0100 or wlawrence@lgattorneys.com.

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