Recent Amendment to Illinois Equal Pay Act Prohibits Salary History Questions

The No Salary History law, which takes effect September 29, 2019, prohibits Illinois employers from asking job applicants about their salary history. The law amends the 2003 Equal Pay Act, which made it illegal to pay employees differently based oqigdiczuae6tk4vhrf3dn their sex or race.

Specifically, the law prohibits employers from:

  • Asking job applicants about their salary history;
  • Seeking salary history information from applicants’ previous employers; and
  • Requiring employees to sign contracts or waivers that prohibit them from discussing compensation with other employees.

Any employer who violates the new law may face civil action by their employees to recover lost wages, compensatory damages, special damages (up to $10,000), punitive damage, injunctive relief, and attorney’s fees. Additionally, employers who violate the law are subject to civil penalties of up to $5,000 for “each violation for each employee affected.”

The law does not prohibit:

  • Employees from willingly disclosing their salary history with their employer; however, the employer may not consider that information when making decisions about employment or compensation;
  • Employees from discussing their wages and benefits with each other; and
  • Employers from providing applicants with information about the compensation of the position or discussing applicant expectations about the wages, benefits, compensation, or salary of the position.

Before the new law goes into effect on September 29, 2019, employers should:

  • Review employee handbooks, employment agreements, and other documents to remove any prohibitions about discussing compensation with other employees; and
  • Review application forms and hiring processes to ensure that the forms and processes have no questions regarding salary history.

If you have any questions about the new law or need assistance reviewing your employment materials, please contact Marcus & Boxerman at (312) 216-2720 or

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Illinois Employers: Register for Secure Choice by November 1

In November 2018, Illinois enacted a law requiring employers to provide a state-run retirement program to their private sector employees, known as the Illinois Secure Choice Savings Programemployee discrimination, discretionary bonuses, adverse employment actions Act (Secure Choice). The Illinois legislature describes Secure Choice as a “simple and convenient retirement savings program, for employers who do not already offer a plan,” through regular payroll deductions into a Roth Individual Retirement Account (IRA).

Employers are not allowed to make any contributions to the program and will not be required to pay administrative or facilitation fees. However, they will be responsible for distributing informational materials about Secure Choice to their employees, facilitating employee enrollment, and setting up the payroll deduction process. Employees will always remain in control of their account and can retain their account even if they change jobs. Secure Choice is designed to automatically deduct five percent of employee wages, but employees have 30 days to change that contribution, or opt out of the program entirely.

An employer, defined in Secure Choice as “a person or entity engaged in a business,” is required to provide a Secure Choice account to their employees if the employer:

  1. Has at least 25 full or part-time employees;
  2. Has operated in Illinois for at least two years; and
  3. Does not offer a qualified retirement saving plan.

Registration for employers with at least 500 employees began in November 2018. Registration is now open for all eligible employers. The deadline for employers with 100-499 employees is July 2019, and November 2019 for employers with 25-99 employees. Employers who do not comply with the program may face a penalty of $250 per employee for the first year, and $500 per employee for each following year. If an employer does not want to participate in Secure Choice, they can choose to offer a qualified plan to their workers. Employers that already offer a qualified retirement plan must go online or call client services to indicate their exemption.

If you have any questions about your company’s retirement plan or how to register for Secure Choice, please contact Marcus & Boxerman at (312) 216-2720 or

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Independent Contractors or Employees?: An Über Question

In an advice memo released on May 14th, theNational Labor Relations Board (NLRB) concluded that Uber drivers are independent contractors, not employees. This classification means that under federal labor laws, Uber drivers will be virtually unable to unionize, participate in workplace organizing activities, file labor complaints, or seek protections from the federal government. Additionally, this classification absolves Uber from providing its drivers with healthcare, a guaranteed minimum wage, sick days, and other benefits.


The NLRB’s advice memo finds that because Uber drivers are afforded significant opportunities for economic gain and entrepreneurial independence, they should not be classified as employees. The memo highlights three main features of the Uber system that influenced its decision:

  1. Uber drivers have unregulated freedom to set their own work schedules, including when to accept rides and when to log off the Uber app.
  2. Uber drivers have the freedom to choose their own work locations by choosing where to log into the Uber app.
  3. Uber does not place any restrictions to prevent its drivers from working for competing ride-share companies, which allows drivers the freedom to earn money from multiple different sources.

The memo states that these three factors give Uber drivers enough control over their earnings to be classified as independent contractors. Other factors the NLRB relied on in its decision include Uber’s lack of driver supervision, limited interactions between Uber agents and drivers, Uber’s lack of control over drivers’ vehicles, and Uber’s percentage based fee structure.

Many opponents disagree with the advice memo. As a result, there is now a push to advocate for more state-level legislation to protect Uber drivers and other “gig economy” workers. Some countries such as Canada and Germany have gone so far as to define a third classification of worker called a “dependent contractor” – a freelancer who primarily works for one business – which gives those workers some protections such as termination severance, but not as many as full-time employees.

Although the United States may be far from changing its employee classifications on a federal level, some liberal states are working to increase regulation in workers’ favor. Currently, Illinois uses three factors to determine employment status: (1) whether the worker is free from the employer’s control in relation to work performance; (2) whether the worker performs work that is outside the usual course of the employer’s business; and (3) whether the worker is usually engaged in an independently established business of the same nature as the work performed for the employer. An analysis of these three factors can give employers a good indication whether a worker should be treated as an employee or an independent contractor.

If you have any questions regarding how the NLRB memo could affect your business or whether your workers are considered independent contractors or employees, please contact Marcus & Boxerman at (312) 216-2720 or

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Time’s Up for Sexual Harassment in the Restaurant Industry

The Time’s Up Legal Defense Fund (Defense Fund), known for providing legal assistance to victims of sexual misconduct, recently started targeting McDonald’s restaurants to pursue sexual harassment claims. On May 21, 2019, the Defense Fund, the American Civil Liberties Union, and the fast-food workers coalition Fight for $15mcdonalds-904054_640 announced the filing of 25 new sexual harassment and gender discrimination cases against McDonald’s restaurants.

These new complaints come on the heels of ten harassment and discrimination charges filed against McDonald’s restaurants with the Equal Employment Opportunity Commission (EEOC) in May 2018, and a September 2018 strike where thousands of McDonald’s workers in 10 cities protested the company’s “widespread” misconduct. The Defense Fund states in a letter to top McDonald’s executives that the company failed to adequately address sexual harassment claims filed with the EEOC one year ago.

Of the 25 new cases, 20 were filed with the EEOC, three were filed as civil rights law suits, and two suits stemmed from previous allegations. Current and former McDonald’s workers argue that these allegations include gender-based discrimination, sexual harassment in the workplace, and retaliation for reporting incidents of harassment.

McDonald’s workers are calling for McDonald’s to provide employees better protection against sexual assault and harassment in the workplace by providing comprehensive training for employees and managers, guaranteeing fair and effective processes to report harassment, as well as ensuring employees do not face retaliation for reporting misconduct. These claims are not unique to McDonald’s, however, as workers in the restaurant industry are exposed to sexual harassment at a higher rate than workers in other industries.

The chief executive of McDonald’s, Steve Easterbrook, addressed these concerns in a letter to Senator Tammy Duckworth (D-IL) on Monday, May 20th. He said that the chain has been working with the anti-sexual violence organization, RAINN, to update and improve its policies on harassment by making better efforts to inform employees of their rights, providing training to restaurant owners and general managers and in the next few months will provide harassment training for crew members and launch a reporting hotline. Illinois politicians seem to be wary of relying upon restaurant owners to establish adequate anti-harassment policies, as they proposed a law to require anti-harassment training take place in restaurants. That law, the Restaurant Anti-Harassment Act, is currently under review in the House Rules Committee and is expected to be effective on January 1, 2020.

Although the Defense Fund is currently targeting McDonald’s restaurants exclusively, its focus could soon change to other franchised restaurants, and the restaurant industry as a whole could experience more harassment-related claims as a result of the Defense Fund’s work.

As a restaurant or franchise owner, it is important to ensure that the directors and managers of your company know how to handle sexual harassment complaints and that your employee handbook has clear policies outlining your procedures for how to address workplace sexual harassment. If you have any questions about your sexual harassment policy or how to address employee allegations of sexual harassment in the workplace, please contact Marcus & Boxerman at (312) 216-2720 or

Posted in Anti-Harassment, Franchisee, Franchisor, MeToo, Restaurant, Sexual Harassment, Time's Up | Tagged , , , , , , , | Leave a comment

#MeToo: Proposed Illinois Law Would Require Restaurant Employee Anti-Harassment Training

On Februarjason-leung-537357-unsplashy 15, 2019, Representative Ann M. Williams (D) introduced House Bill 3351, the Restaurant Anti-Harassment Act (the “Bill”). If it is enacted, the Bill would require all restaurants operating in Illinois to have a written sexual harassment training policy and provide anti-harassment training to all employees. The Bill is currently under review in the House Rules Committee and is expected to be effective on January 1, 2020.

The Bill would require that every restaurant have a written sexual harassment policy that:

  • Prohibits sexual harassment;
  • Defines sexual harassment under applicable state and federal law;
  • Provides examples of conduct that would constitute sexual harassment;
  • Explains the internal complaint process available to the employee;
  • Details the complaint process and legal remedies available through the Department of Human Rights;
  • Prohibits retaliation for reporting sexual harassment allegations; and
  • Requires that all employees participate in sexual harassment training.

Under the Bill, all restaurants would be required to provide mandatory sexual harassment training to employees, covering at least the following topics:

  • The definition of sexual harassment and the forms it takes;
  • An explanation about the harmful impact sexual harassment can have on victims, businesses, and those who harass;
  • How to recognize appropriate and inappropriate workplace conduct; and
  • An explanation of when and how to report sexual harassment.

In addition to the topics above, the Bill would require that training for supervisors and managers also:

  • Details employer and manager responsibility in reporting and addressing sexual harassment;
  • Provides instruction on how to create a harassment-free culture in the workplace; and
  • Explains how to investigate sexual harassment claims in the workplace.

The Bill instructs that the sexual harassment training must be specific to the restaurant or hospitality industry, and must include food-service related activities, images, or videos. The training may be conducted online, in a classroom, or through remote training, but must be available in both Spanish and English.

Sexual harassment training would need to occur within 90 days of the Bill’s passage or within 30 days of hire, and every 2 years thereafter. Additionally, restaurants would be required to provide proof of a sexual harassment policy and proof of training for all employees upon request by the Department of Human Rights. Employers would face a civil penalty of $500 for their first violation of the Bill and $1000 for every following violation. If the Bill is passed, Illinois will join the growing number of states proposing mandatory sexual harassment training for restaurant employees.

Whether or not the Restaurant Anti-Harassment Bill becomes law, sexual harassment is a serious workplace concern for every restaurant owner. If you have any questions regarding the Bill or would like help revising or implementing your company’s employee handbook or sexual harassment policy to ensure compliance with the Bill before or after it becomes law, please contact Marcus & Boxerman at (312) 216-2720 or

Posted in Anti-Harassment, Business and Corporate, Employee Handbook, Restaurant, Sexual Harassment | Tagged , , , | Leave a comment

Minimum Wage Changes in Illinois

dollar-941246_1920In February, Governor JB Pritzker signed a piece of legislation that will set Illinois on track to reach a statewide minimum wage of $15.00 by 2025. To mitigate the effect this change has on small employers, the law allows employers with 50 or fewer employees to claim a tax credit for 25% of the cost of the increase in 2020 and gradually phases out over the next several years.

The following chart shows the dates each incremental increase will occur and the corresponding statewide minimum wage.

Date Minimum Wage
January 1, 2020 $9.25
July 1, 2020 $10.00
January 1, 2021 $11.00
January 1, 2022 $12.00
January 1, 2023 $13.00
January 1, 2024 $14.00
January 1, 2025 $15.00

In addition to raising the minimum wage, the new law imposes harsher penalties on employers who fail to pay their employees minimum wage. Previously, employers were liable for the amount of any underpayment plus a statutory penalty of 2% of the underpayment per month that amount goes unpaid (effectively, interest) and employers could be fined up to 20% of the underpayment. The new law more than doubles the statutory penalty to 5% per month, allows employees to recover three times the amount of the underpayment, and allows for a fine of up to $1,500 per violation in addition to the pre-existing 20% fine.

Employers can also now be fined for their failure to keep the records required by the Illinois Wage Payment and Collection Act, up to $100 for each affected employee.   The Illinois Wage Payment and Collection Act states that an employer must keep, for a period of not less than three years, true and accurate records of: (1) the name and address of each employee; (2) the hours worked each day in each work week by each employee; (3) the rate of pay; (4) the amount paid each pay period to each employee; and (5) all deductions made from wages.

Finally, in addition to these statewide changes it is important to remember that Chicago and the broader Cook County area will also increase minimum wages effective July 1, 2019. The minimum wage will increase from $12 to $13 per hour in Chicago and from $11 to $12 per hour in Cook County. These changes will necessarily affect the maximum tip credit that some employers may be able to take.

If you have any questions about any of these newly effective laws, please contact Marcus & Boxerman at (312) 216-2720 or

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New Year, New and Amended Employment Laws

Over the past year, the Illinois General Assembly andemployer-v-employee-defamation Chicago City Council have enacted or modified several laws and ordinances that affect employers. Sifting through the specific legal language can be tricky, so we’ve summarized the most important changes that are relevant to employers.

Illinois Nursing Mothers in the Workplace Act (NMWA)

Effective August 21, 2018, an amendment to NMWA requires employers to pay for “reasonable break time” spent expressing milk. Previously, NMWA provided that pumping breaks “must, if possible” run concurrently with other break times. The new amendment now prohibits employers from requiring employees to pump during their break time. In addition, employers cannot reduce pay for pumping breaks and can only restrict employees from pumping if it causes “undue hardship” on the employer.

Illinois Human Rights Act (IHRA)

Effective August 21, 2018, three amendments were made to IHRA that are likely to increase the number of claims brought against employers:

  1. Employees have 300 calendar days (instead of 180) from the date of an alleged civil rights violation to file a charge with the Illinois Department of Human Rights (“IDHR”).
  2. The Illinois Human Rights Commission will receive additional resources that will help expedite the administrative process for resolving alleged civil rights violations.
  3. Employees may now opt out of IDHR’s administrative investigation to immediately bring a lawsuit in Illinois state courts.

Illinois Wage Payment Collection Act (IWPCA)

Effective January 1, 2019, amendments to IWPCA require employers to reimburse employees for necessary expenditures that are directly related to services performed for their employers. This includes expenses incurred via “bring your own device” policies “which require employees to use personal cell phones, tablets, or computers for work purposes.” As a result of this amendment, employers should have an established expense reimbursement policy that includes:

  1. The types of expenses that are reimbursable;
  2. The amount or proportion of the expense that is eligible for reimbursement;
  3. The type of documentation required for reimbursement; and
  4. The time period within which employees must submit documents to qualify for reimbursement.

Illinois Equal Pay Act (IEPA)

Effective January 1, 2019, an amendment to IEPA prohibits employers from paying African Americans less than non-African Americans who are performing the same or substantially similar work. Previously, IEPA was limited to ensuring equal pay amongst men and women. Although this amendment is new to Illinois law, federal laws already provided such protections to African Americans.

Illinois Service Member Employment Rights & Reemployment Act (ISERRA)

Effective January 1, 2019, the rights of Illinois employees serving in the military will be governed by ISERRA, which was passed to protect the employment and benefits of service members who take a leave of absence from employment due to military service. ISERRA has expanded the definition of “military service” to include: (1) service in an auxiliary of the United States Armed Forces as the result of an emergency; (2) service in the Illinois State Guard; and (3) absences caused by illness or injury sustained or aggravated during a period of active service.

City of Chicago Office of Labor Standards (OLS)

Established January 1, 2019, OLS will investigate and respond to employee complaints under the City of Chicago’s employment laws, including but not limited to minimum wage, paid sick time, and anti-wage theft laws. These complaints were previously handled by the Department of Business Affairs and Consumer Protection, which remains responsible for business licensing and enforcement of consumer fraud ordinances. This change will likely result in more claims being brought against employers by the City of Chicago.

If you have any questions about any of these newly effective laws or amendments, please contact Marcus & Boxerman at (312) 216-2720 or

Posted in Business and Corporate, Employment, Restaurant | Leave a comment

Recent Illinois Supreme Court Ruling Opens Floodgates to Biometric Information Litigation

imagesIn a prior blog post, we advised employers about a once little-known Illinois law, the Biometric Information Privacy Act (BIPA). The BIPA imposes numerous restrictions on how private entities collect, retain, disclose, and destroy biometric identifiers such as fingerprints, voiceprints, retina or iris scans, and scans of hand or face geometry. Businesses most often collect this information from employees, but advances in technology have caused a recent increase in the collection of consumers’ biometric information.

Following years of litigation, on January 25, 2019, the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation, ruled that an individual can bring a lawsuit for a violation of the BIPA without showing actual harm resulted from the violation. In other words, a business may be held liable for violation of the BIPA for simply collecting biometric information if it does not strictly follow the BIPA guidelines, regardless as to whether a person was actually damaged.

As a result of this ruling, expect a dramatic increase in the number of lawsuits under the BIPA. In fact, less than a week after the Supreme Court’s decision in Rosenbach, class action lawsuits alleging violations of the BIPA were filed on behalf of current and former employees of Little Caesars Pizza, ABT Electronics, Choice Hotels and Warehouse Services Inc. It is now more important than ever to proactively limit your liability when collecting biometric information. In order to avoid liability for collecting biometric information, you must either (1) not collect such information or (2) develop a publicly available written policy in compliance with the BIPA. Under the BIPA, your policy must establish:

  • A retention schedule for storing biometric information; and
  • Guidelines for permanently destroying biometric information when the initial purpose for collecting it has been satisfied, or within 3 years of the individual’s last interaction with the company.

In addition, when collecting or otherwise receiving a customer’s or an employee’s biometric information, you must:

  • Inform the individual in writing that the information is being collected, the purpose for collection, and the length of storage;
  • Obtain a written release from the individual for the collection and storage of the information;
  • Store and transmit all biometric information with the same or better security than used for confidential company information; and
  • Not disclose, sell, lease, trade, or otherwise profit from biometric information unless the individual consents or disclosure is required by law.

If you have any questions about whether your biometric information policy complies with the law, or if you would like a policy and employee release drafted in accordance with the Biometric Information Privacy Act and other applicable laws, please contact Marcus & Boxerman at (312) 216-2720 or

Posted in Biometrics, BIPA, Business and Corporate, Class Action | Leave a comment

Five Tips for Selecting the Right Franchise Attorney

Michael Boxerman was quoted in a recent article discussing what to look for when selecting a franchise attorney.  Read what he has to say at

Posted in Franchisee, Franchisor, Uncategorized | Leave a comment

Trump Administration Proposes Rollback of Obama-era Tip-Pooling Regulations

tip-jar-1422341The Department of Labor (DOL) has proposed changes to the Fair Labor Standards Act’s (FLSA) tip pooling regulations. The proposed changes would roll back the Obama administration’s 2011 regulations that prohibited employers from distributing tips to anyone other than front-of-the-house staff who earned them. Following the 2011 Obama administration regulations, the DOL has maintained that tips earned by front-of-the-house employees–including servers, bartenders, and bussers–are the property of the employees, and that employers may not mandate that they be shared with back-of-the-house employees such as cooks and dishwashers. The current rules also allow for a “tip credit,” whereby employers can pay tipped employees less than the federal minimum wage, as long as tips make up the difference.

The proposed new regulations provide that employers who pay their employees the federal minimum wage and do not take advantage of the “tip credit” own the tips made by front-of-the-house employees. Consequently, employers can pool tips and distribute them between front-of-the-house and back-of-the-house employees as the employer chooses. However, the new regulation lacks concrete limitations, leaving room for employers to use those pooled tips for any purpose. Under the proposed regulations, employers could pocket the tips for themselves.

Proponents of the new regulations say they will remedy the vast disparity in wages between front-of-the-house and back-of-the-house employees. Opponents argue it is not fair for employers to have full control over the distribution of tips earned by employees. They argue, moreover, the new regulations will not actually solve the discrepancy in pay between front-of-the-house and back-of-the-house employees but rather will lead to business owners pocketing the tips.

Lawmakers are now evaluating comments on the new proposed regulations, a process that has no set timeline and could result in the withdrawal, modification, or finalization of the rule change. The DOL Office of Inspector General has also announced that it is auditing the rule-making process related to the new regulations. This announcement came in response to a recent Bloomberg Law report that exposed a previously unreleased internal economic impact analysis showing that workers would lose billions of dollars in tip income as a result of the new regulations.

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