MONDAY MORNING MINUTE: June 17, 2019

Monday Morning Minute

In This Issue

Texas Signs the Chick-fil-A Bill, Protecting Religous Freedom for Employers

Illinois Re-Defines "Employer" Under IHRA

SCOTUS Decision on EEOC Charges as Jurisdictional Issues

Nevada Becomes 1st State to Bar Employers from Using a Pre Employment Positive Marijuana Test to Deny Employment

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June 17, 2019

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TEXAS SIGNS THE CHICK-FIL-A BILL INTO LAW PROTECTING RELIGOUS FREEDOM

Governor Greg Abbot signed a bill into law which is being called the "Save Chick-fil-A" bill. This bill was born from San Antonio's vote to prohibit the restaurant from opening in the airport because of its donations to certain Christian organizations, which Spognardi Baiocchi LLP reported on in an earlier edition of its Monday Morning Minute.

This new law, which goes into effect on September 1st stops the government from taking adverse action(s) against a person or a business based on their contributions or memberships in religious organizations.

"What we want to make sure is that if you donate to the Salvation Army, you won't be labeled as bigoted," Rep. Matt Krause said. He went onto say that Chick-fil-A was unfairly labeled as anti-LGBT because of its donations to organizations like the Salvation Army and the Fellowship of Christian Athletes. Both of these groups also receive donations from Walmart and Home Depot.

ILLINOIS GENERAL ASSEMBLY MAKING THINGS FOR BUSINESS MORE DIFFICULT

The Illinois legislature has recently passed legislation addressing discrimination and diversity which is expected to be signed into law by Governor Pritzker, and which will make conducting business more difficult.

HB 252 creates a lower employee threshold for the definition of "employer" under the Illinois Human Rights Act. The amendment expands the definition of employer from any person employing 15 or more people to any person employing one or more people during 20 or more calendar weeks within the calendar year. Employers with less than 15 employees who have previously not been covered under the Illinois Human Rights Act will now need to make sure policies are in compliance.

Additionally, HB 3394 requires most publicly traded companies organized or headquartered in Illinois to include detailed demographic diversity information in their annual reports required to be filed with the Illinois Secretary of State.

For more information on this, please contact any Spognardi Baiocchi Attorney of your choice.

SCOTUS: EEOC CHARGE IS NOT JURISDICTIONAL

Individuals who want to file a discrimination complaint in federal court under Title VII are required to first file a charge with the Equal Employment Opportunity Commission. The charge will then be investigated by the EEOC. On June 3rd, the Supreme Court found that the charge filing precondition is not a jurisdiction requirement. Fort Bend Co., Tx v. Davis (June 3, 2019)

In 2011, Plaintiff, Lois Davis filed an EEOC claim against her employer Fort Bend County, Texas claiming that they subjected her to harassment and retaliation. While her charge was pending, Davis was fired because she failed to come to work on a Sunday and went to a church event instead. After she was fired, she wrote "religion" on her EEOC intake form but never formerly amended her EEOC charge to reflect her new allegations.

After years of litigation, Fort Bend County moved to dismiss her complaint arguing that the court did not have the jurisdiction to adjudicate her religious discrimination claim because she had not properly noted her claim within her EEOC charge. The trial court dismissed the claim on this basis, but the Fifth Circuit court reversed. The Supreme Court upheld the Fifth Circuit and found that the EEOC charge filing requirement was a prudential prerequisite and not a jurisdictional requirement.

The Supreme Court found that the charge filing requirement of Title VII is a mandatory claim processing rule if an employer properly raises it. The Court reasoned, however, that it can be waived if the party invoking the claim waits too long, and therefore is not a traditional jurisdictional rule.

NEVADA BECOMES FIRST STATE TO BAR EMPLOYERS FROM USING A POSITIVE MARIJUANA PRE EMPLOYMENT TEST TO DENY EMPLOYMENT (IN MOST CASES)

After nearly two years of allowing recreational marijuana use, Nevada has enacted a law, Assembly Bill 132 restricting most employers from using a marijuana pre employment drug test to reject potential employees.

While the law applies to both private and public employers, there are of course exemptions for those employers who have employees involved in safety sensitive positions, do certain business with the federal government or are federal workers.

The law does not have an enforcement mechanism in its text, nor does it define what positions would be considered "safety sensitive" or exempt from it. And of course, there is still the "pink elephant" in the room giving employers a headache: under federal law, marijuana is treated as a Schedule 1 drug, like cocaine and heroin.

In this complex environment of employment drug testing intersecting with many local, state and federal laws, make sure you reach out to a Spognardi Baiocchi Attorney to discuss your written and administered policies in this area to ensure your company is compliant.

SPOGNARDI BAIOCCHI llp is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business. Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs.

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues. And as litigators, who combined have over thousands of trials "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner.

For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at [email protected]