With fall comes the hustle and bustle of getting back into routines and wrapping up projects before year end. However, we at Levenfeld Pearlstein always look forward to fall because that means it's time for our annual Back to School: Employment Law Update. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year. TOPICS: • Update on overtime regulations and standards • New paid sick and family leave requirements and possible federal action to bring consistency • Changing standards for independent contractor and joint employer status • Is sexual orientation protected under Title VII? • Legalized medical and recreational marijuana and what they mean for employment decisions • Developing standards for enforcing non-competes/non-solicits and their interplay with social media • The changing face of the NLRB and what it means for union and non-union employers • Expanding pregnancy accommodation obligations • and more...

1. Back to School:
Employment Law Update Webinar
Peter Donati
Laura Friedel
Kenneth Kneubuhler
September 27, 2017

2. Today’s Webinar Panel
Peter F. Donati
Partner
Tel: 312.476.7590
pdonati@lplegal.com
2
Laura B. Friedel
Practice Group Leader
Tel: 312.476.7510
lfriedel@lplegal.com
Kenneth Kneubuhler
Of Counsel
Tel: 312.476.7567
kkneubuhler@lplegal.com
www.lplegal.com

3. Agenda
• Overtime update
• Minimum Wage developments
• Sexual Orientation and Title VII
• Other EEOC updates
• Independent Contractor & Joint Employer standards
• NLRB update
• Affordable Care Act update
• Immigration update
• Arbitration Agreements and Waiver of Class Claims
• Church Plan Exemption under ERISA
• Pregnancy Accommodation developments
• Paid Leave update
• Restrictive Covenant Agreement update
• Pay History laws
• Medical Marijuana
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4. Overtime Update
What a difference a year makes…..
• Obama administration regulations
stayed just before effective date,
and are now dead.
• Trump DOL has asked for public
comment, so regulatory process
is in motion.
• For now, 2004 Regulations
remain in place.
www.lplegal.com 4

5. Minimum Wage Developments
States and localities continue to raise minimum wage….
• Chicago → $11/hr
• Cook County (if municipality hasn’t opted out) → $10/hr
• New York State → $9.70/hr
• NYC → $11/hr (large employers) or $10.50/hr (small employers)
• Washington, DC → $12.50/hr
But some stepping back….
St. Louis’ minimum wage of $10/hr (which was on track to increase to
$11/hr) was invalidated by Missouri state law, resulting in decrease of
minimum wage in St. Louis from $10/hr to $7.70/hr.
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6. Sexual Orientation and Title VII
• 2015 EEOC began to assert that
Title VII covers sexual orientation
• All 11 U.S. Circuit Courts
previously had held not covered
www.lplegal.com 6
• Hively v. Ivy Tech Comm. College (April 4, 2017) –
full panel of 7th Cir. breaks ranks
- Form of sex stereotyping
- Associational discrimination
• May 25, 2017 – 2d Cir. grants en banc review in
Zarda v. Altitude Express
• July 26, 2017 – DOJ files amicus brief opposing
protection under Title VII – conflict with EEOC

7. Gender Identity and Title VII
• Roberts v. Clark County Sch. Dist. (October 4, 2016)
– district court in Nevada agrees with EEOC
• Blatt v. Cabela’s Retail (May 18, 2017) – district
court in Pennsylvania holds gender dysphoria
possible disability protected by ADA
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• EEOC also takes
position that Title VII
protects against
discrimination based on
gender identity

8. Examples of Discrimination - EEOC
• Failing to hire an applicant because she is a
transgender woman.
• Firing an employee because he is planning or has
made a gender transition.
• Denying an employee equal access to a
common restroom corresponding to the employee's
gender identity.
• Harassing an employee because of a gender
transition, such as by intentionally and
persistently failing to use the name and gender
pronoun that correspond to the gender identity with
which the employee identifies, and which the
employee has communicated to management and
employees.
www.lplegal.com 8

9. Other EEOC Developments
Pay Reporting
• 2016 EEOC announces plan to begin requiring pay
data reporting as part of EEO-1 in March 2018
• April 29, 2017 – EEOC Chair Victoria Lipnic
announced review of requirements by OMB
• “The poster child for the kind of regulation that the
President campaigned against”
• Prior EE0-1 form (without pay data) remains in effect.
• Deadline still March 2018.
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10. DOL Withdraws Key Guidances
Independent Contractor Guidance
• Guidance issued in July 2015 changed analysis and
made it much harder to establish independent
contractor status.
• Withdrawn on June 7th
• Where are we now?
- Prior DOL standards stand
- IRS, Common Law, ABC Tests still in place
- Higher state standards apply
www.lplegal.com 10
Key Takeaway:
Withdrawal of guidance doesn’t materially alter overall risk of
independent contractor being deemed to be misclassified!

11. DOL Withdraws Key Guidances
Joint Employer Guidance
• Guidance issued in January 2016 expanded
situations where both related companies and
unrelated companies that work together would be
considered joint employers.
• Withdrawn on June 7th
• Where are we now?
- Existing law on joint employer status remains
- Staffing agency employees still considered joint employees
- Depending on management structure, sister company
employees may be considered joint employees
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12. NLRB Gets Ready to Change Course
• Two new members recently appointed to NLRB
(William J. Emmanuel and Marvin E. Kaplan). With
Chair Philip Miscimarra, this gives NLRB a
Republican majority for first time in 8 years.
• Because of the way the NLRB functions and the fact
that General Counsel Richard Griffin (former union
attorney) will remain until November, change will
come gradually
• Regional personnel will adhere to existing
standards, even if writing is on the wall
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13. Likely Changes from NLRB
• Joint employment standard (also being addressed at
D.C. Circuit)
• Mini bargaining units
• Ambush elections
• Class action waiver (also being addressed at
Supreme Court)
• Use of employer email
• Scrutiny of employer handbook policies
www.lplegal.com 13

14. Affordable Care Act Update
• It is still with us . . . .
• Minimal Impact of January 2017 Executive Order
• Failed Legislative Repeal Efforts
• Graham-Cassidy, the latest failed attempt
• Disclosure amid the turmoil
• Revised “Summary of Benefits and Coverage” standardized form applies
for this season’s open enrollments (after March 31, 2017)
• ERISA Summary Plan Descriptions remain important
• We continue to see insurance certificate booklets and other benefit
summaries that do not satisfy requirements
• Issues in transactions and DOL audits
• King v. Blue Cross Blue Shield of Illinois (9th Cir. September 8, 2017) –
piecemeal, uncoordinated disclosure of changes can be misleading
www.lplegal.com 14

15. Immigration
• Visa issues
• H-1Bs
• Crackdown targeting employers who favor H-1B
over US workers
• Suspension of premium processing resulting in
delay
• Looking closer at entry-level positions
• Entrepreneur / “Start-Up” Visa Program delayed
www.lplegal.com 15

16. Immigration
• DACA (Deferred Action for Childhood Arrivals)
• Announcement September 5th that DACA is being
phased out.
• Current DACA holders:
• If employment authorization expires before March 5, 2018 must
renew by October 5th.
• If employment authorization expires after March 5, 2018 will lose
authorization on that date unless they obtain other authorization
• If you have DACA employees:
• Don’t terminate based on DACA withdrawal – only when employment
authorization documents expire
• Consider carefully international travel by DACA employees
www.lplegal.com 16

17. New Form I-9
• New Form I-9 has been issued
• Changes are minimal
• Adds some acceptable forms of identification
• Separate paper and electronic versions
• Make sure using form that has “07/17/17” in the footer and
“Expires 08/31/2019” in header
• Must use new form as of September 18th
• New document is available at https://www.uscis.gov/i-9.
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18. Arbitration Agreements and
Class Action Waivers
• January 2012 – NLRB decides D.R. Horton case
• Most federal circuit courts disagreed (5th, 2nd, 8th)
• May 2016 – 7th Circuit becomes first circuit court to agree
with NLRB – Epic Systems v. Lewis
• Two more courts agree with NLRB - 9th Circuit in August
2016 (Ernst & Young v. Morris) and 6th Circuit in June
2017 (NLRB v. Alternative Entertainment)
• January 2017 – Supreme Court grants cert in three of the
appellate court cases
• Decision expected later this year or early 2018
www.lplegal.com 18

19. ERISA Exemption for Church Plans
• Protections of ERISA do not apply to “Church Plans”
• Original base definition: plan established and maintained for its
employees by a church that is tax-exempt.
• Later “clarifying” addition: includes a plan maintained by an organization
the principal purpose of which is the administration or funding of [such a]
plan if such organization is controlled by or associated with a church.
• Many rulings hold that plans of church “affiliated” tax exempt health
organizations are Church Plans.
• Challenges by participants in these types of plans led to
decisions that the plans were not exempt as Church Plans
• Not “established” by a church as required by base definition.
• 3rd Circuit in 2015, followed by 7th and 9th Circuits in 2016.
• Overruled by Supreme Ct in Advocate Healthcare Network v.
Stapleton (June 5, 2017).
• Plan need not be “established” by a church.
www.lplegal.com 19

20. Pregnancy Accommodation Developments
• EEOC enforcement
guidance in 2015
addressing requirements
under ADA and Pregnancy
Discrimination Act.
• July 27, 2017, Mass.
passes Pregnant Workers
Fairness Act
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• Last four months, Connecticut, Nevada, Vermont, and
Washington State have passed similar laws
• Total count now 22 states and District of Columbia
• Illinois Pregnancy Accommodation Act went into effect
on January 1, 2015

21. Pregnancy Accommodation Developments
Locations with provisions for pregnancy accommodation as of August 2017
Source: Department of Labor
https://www.dol.gov/wb/maps/
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22. Leave as Accommodation under ADA
Severson v. Heartland Woodcraft, Inc.,
(7th Cir. 9/20/17)
• Question posed: does the Americans with
Disabilities Act (ADA) require that employee be
given additional time off as an accommodation?
• EEOC has said yes. Courts previously have
skirted the issue, not providing much guidance.
• In Severson, the Seventh Circuit rejected the
EEOC’s position
- denied the employee’s claim that he should have been
allowed an additional 2-3 months of leave
- flies in the face of EEOC’s position on “maximum leave”
policies
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“[the ADA] is an anti-discrimination statute, not a medical
leave entitlement….”

23. Paid Leave
• Chicago Paid Sick Leave Ordinance
• Went into effect July 1st
• Not too complicated on face, but complicated when you dig in
• Issues our clients are seeing
• Existing generous policies not meeting technical requirements
• Carry-over requirement even if frontloading full amount employee is permitted
to take
• How to handle new hires when frontloading
• Part-time / temporary employees and interns
• For FMLA-covered employers, whether to create separate category of time
• Multiple locations and employees who work from home
• Cook County Earned Sick Leave Ordinance
• Went into effect July 1st
• Home-Rule Municipalities had right to opt-out – vast majority did
• For those staying in, same issues as Chicago Ordinance
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24. • New York State Paid Family Leave
• Effective January 1, 2018
• Must include in handbook/policies
• Similar to unemployment compensation system, but added to
employer’s existing disability insurance policy
• Most employees eligible after 26 weeks
• Starts at 8 weeks @ 50% pay – going to 12 weeks @ 67% pay
• Can be used for maternity/paternity or other family member care
• Employers are required to carry a disability insurance policy
• Premium is fully funded by employees
• Could start deducting from pay July 1st
• Must include in handbook/policies
Federal Standard to bring consistency?
Paid Leave
www.lplegal.com 24

25. Restrictive Covenant Developments
• Illinois - Does the 2-year, bright-line standard under Fifield
apply in federal court? Probably not.
• California – Choice of law/venue statute
- Governs contracts that are entered into from Jan. 1, 2017
forward
- Can’t require employee to adjudicate claim outside of CA
- Can’t deprive employee of substantive protections of CA law
- All employees who “primarily” reside and work in CA
- Voidable at option of employee
- Can get attorneys’ fees
- Does not apply to employee represented by counsel in
negotiating employment agreement
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26. Restrictive Covenant Developments
• Bankers Life v. American Senior Benefits (Illinois 1st
Dist. – June 2017)
- Former employee sent three former coworkers requests to
become LinkedIn “connections”
- Requests did not discuss Bankers Life or new employer,
did not suggest review of job description, did not encourage
recipient to leave
• Mobile Mini, Inc. v. Vevea (U.S. District Court in
Minnesota – July 2017)
- Two posts on LinkedIn that included invitations to
customers
- Went beyond status updates
www.lplegal.com 26

27. Pay History Laws
• Laws that prohibit asking applicants about current or past
compensation before an offer is made, or otherwise
seeking that information.
• Currently some sort of restriction on the books
• Massachusetts (effective 2018)
• Delaware (effective 12/17)
• Oregon (no suits until 2019)
• Puerto Rico (penalty provisions effective 3/18)
• New York City (effective 10/31/17)
• Philadelphia (enforcement delayed pending court challenge)
• San Francisco (penalty provisions effective 2019)
• Illinois version was vetoed
www.lplegal.com 27

28. Pay History Laws
• Practical Implications
• What law applies when offers are made over state/city lines?
• Difficulty making initial offer
• Increased negotiation?
• Interplay with anti-trust laws
• Increased need for comp consultants?
www.lplegal.com 28

29. Medical Marijuana
• Medical marijuana legal in 29 states
plus DC and pending in 12 others
• Still Schedule 1 controlled substance
under federal law
• Early case law suggested right to use
didn’t limit employment action
- 2015 Colorado S. Ct. in Coats v Dish
Network
- Similar rulings in CA, MT, and WA
• But the tide is shifting…
www.lplegal.com 29

30. Medical Marijuana
• Callaghan v. Darlington Fabrics – Rhode Island
Superior Court – May 2017 – refusal to hire medical
marijuana user violates RI Civil Rights Act and med.
marijuana statute
• Barbuto v. Advantage Sales – MA Supreme Court –
July 2017 – finds claim for disability discrimination
under state FEPA
• Noffsinger v. SSC Niantic Operating Co. – U.S.
District Court in CT – August 2017 - federal law does
not preempt claims under state statutes
www.lplegal.com 30

31. Questions?
www.lplegal.com 31

32. Trouble keeping up with legal developments?
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Subscribe to our blog at
www.lpemploymentlaw.com
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