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David Morrison Featured in Crain's Roundtable Discussion on Today's Changing Workplace

November 22, 2017

David E. Morrison, a principal in the firm's Labor & Employment Group, was featured in a Crain's Chicago Business roundtable discussion entitled "Labor and Employment: Navigating Today's Changing Workplace." 

Mr. Morrison was one of four Chicago-based attorneys who discussed a multitude of labor & employment topics, including how employers can avoid costly employment issues, the impact of millennials on a company's approach to employee relations, and what employment law related changes are expected in the coming year. 

Mr. Morrison's answers to Crain's' questions are included below.

What types of employment-law issues do you most frequently help your clients navigate?

Violence in the workplace has unfortunately become a prevalent subject, as gun violence has brought more attention to the impact of threats being made in the workplace. Another area I’m often called on to address concerns restrictive covenants and trade secrets. It’s interesting because I’m regularly trying to either enforce a client’s rights, or trying to poke holes in arguments raised by another company trying to enforce their rights. Regularly seeing both sides of the issue gives me the depth and balance to counsel my clients on this important topic.

How can employers avoid costly employment issues?

A recent wave of class-action lawsuits under the Illinois Biometric Information Privacy Act (BIPA) presents the newest challenge to Illinois companies. The BIPA imposes a number of requirements concerning the collection, retention and destruction of “biometric identifiers” and “biometric information”— think fingerprints or retina scans that a company may be using to clock employees in and out of work, or to access confidential areas within the workspace. While the law was originally enacted in 2008, we’ve only recently started seeing it deployed against unsuspecting companies. The potential liability can be substantial. How can an employer avoid the cost of this type of class action? By issuing proper notice to employees before collecting biometric identifiers and biometric information, obtaining written consent, and disseminating robust policies for the destruction of such identifiers and information. This is a good example where a well-informed employer can avoid the potential for costly litigation.

How is the Weinstein case and other similar ones in the news affecting your clients’ workplace policies?

In 1998, the U.S. Supreme Court issued two decisions that provided companies with a defense to these types of claims if they adopted and enforced sexual harassment policies, but the employee failed to report the harassment. Thus, companies routinely conduct harassment prevention training sessions, and remind their employees of anti-harassment policies. While the country seems to be focused on harassment prevention right now, rest assured that human resources has been focused on this important issue for a long time. That’s why this news has been so shocking—this behavior is not tolerated in corporate America because the workplace policies are already so well established.

What effect does the increasing number of millennials have on a company’s approach to employee relations?

One trend is companies formalizing telecommuting policies to help recruit and retain millennials—the rest of us get to enjoy the benefits, too! In addition, millennials are known for craving feedback on their work product, which ties very well into human resources’ desire for management to regularly provide feedback so that employees can learn and improve in their areas of growth. Also, millennials’ work satisfaction is not necessarily driven by salaries to the same extent as we’ve seen in previous generations. Sometimes it’s easier to throw a few dollars at a problem and hope that solves a morale issue; it’s much harder to come up with ways to allow employees to balance their varied interests in and out of work, and to develop fulfillment in what they do at work.

In today’s social media environment, what recourse does a company have for employees who are publicly active in political or other causes that are inconsistent with the company’s values?

Employees can be fired for any reason as long as it’s not illegal, although some states regulate an employer’s ability to discipline employees for lawful activities outside of the workplace. I recommend that companies implement a social media policy, including a disclaimer that employees don’t speak for the company on any post that could be perceived as being in the company’s line of business, and reminding employees not to use ethnic slurs, personal insults, obscenity, or engage in any conduct that would be unacceptable in the workplace while posting on social media. Violations of the policy certainly could lead to disciplinary actions, including termination.

What employment law-related changes do you expect to see in 2018?

The most interesting employment law issue that I expect Illinois employers may confront, or want to address, in 2018 relates to medical leaves of absence that extend beyond the 12 workweeks protected by the Family and Medical Leave Act. This is where the intersection between the Americans with Disabilities Act and FMLA becomes a bit blurry. Traditionally, most courts had found that even when an employee’s FMLA protected leave had ended, if the employee’s doctor had provided an additional, limited definite leave with a specific return to work date, the employee would enjoy some form of job protection under the ADA. In the last few weeks, though, the Seventh Circuit Court of Appeal—which governs federal law in Illinois, Wisconsin and Indiana—issued two opinions holding that a long-term medical leave of absence was not a “reasonable accommodation” under the ADA, meaning an employer did not have to offer such a leave to a disabled employee. The ADA, it found, is not a medical leave statute. Other federal courts, including the Supreme Court, have not adopted this position yet, so multi-state employers should exercise caution. Illinois employers, however, may consider adjusting their leave programs based on these important rulings.

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