Monday Morning Minute
In This Issue
Illinois' Equal Pay Act- Do Not Forget!
California Lengthens Statute of Limitations for Filing Employee Claims
Mandatory Arbitration Under FEHA is in the Crosshairs for CA Employers
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                  October 21 , 2019


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Recently, partner Lisa Baiocchi informed readers that it is unlawful to inquire about job salary history under amendments to the Illinois Equal Pay Act.  Employers also routinely overlook anti-discrimination provisions of the Illinois Equal Pay Act at their peril, and mistakenly only focus on federal pay laws.  Illinois' Equal Pay Act applies to any employer with four or more employees and makes it unlawful to discriminate in pay provided to male and female employees performing the same or similar work
Complaints can be initiated with the Illinois Department of Labor by current or former employees, who can ask that their identity be kept confidential or anonymous.  The IDOL can also investigate an employer on its own initiative, and investigate back three years from the date the  complaint was filed.   Their investigatory powers are broad and can audit the entire organization.
The Act was also amended so that effective January 1, 2019, the same equal pay principles apply to African American employees.  Exceptions to the Act may exist for gender and racial discrimination complaints where the pay differential is based upon a defined Seniority system, a work measurement system, or Merit Pay System.  The Act provides for individual liability for owners, officers and agents of the employer.  Employers may also be subject to civil fines of up to $2,500 per violation.  
Too often, employers are aware of a wage disparity problem, but fail to correct it.  Often the disparity has been caused by historical circumstance, rather than unlawful intent.  Nevertheless, it is foolish for an employer to sit on its hands and wish the problem will go away.  It won't and it will only get worse.  Please call Spognardi Baiocchi if you need a confidential consultation in this area.           
California has a law entitled the Fair Employment and Housing Act ("FEHA"). This is the law under which employees (or former employees) file lawsuits against their employers for discrimination, harassment and retaliation, similar to many other states. Also similar to most states, it is required to file under the FEHA first, and to exhaust this administrative remedy prior to filing any lawsuits in court on these same matters. Under this California state law, employees had one year to file an administrative complaint with the Department of Fair Employment and Housing ("DFEH") from the date of the alleged discrimination, harassment, or retaliation. If an employee did not comply with this administrative requirement, the employee's complaint would be subject to dismissal for failure to exhaust administrative remedies. Once filed with the DFEH, the Department as 150 days to investigate the complaint and either issue a right to sue letter or file a lawsuit against the employer. If an employee (or former employee) receives a right to sue letter, he or she has one year to file a civil action from the time they receive such right to sue letter from the Department.
But a new law, the SHARE Act, gives employees three years to file a complaint with the DFEH. This Act, the Stop Harassment and Reporting Extension Act (AB 9, 2019) goes into effect on January 1, 2020. Why is this significant? Outside of the fact that it expands the current state statute of limitation by three times its current amount, it sits in stark contrast to its federal counterparts, Title VII or ADA(AA) whereby an employee has only 300 days to file such administrative charge with the EEOC.
Employers should start preparing for proper record keeping under this elongated statute of limitations time frame and look to putting in internal processes and procedures for document preservation.         
California has enacted AB 51 which is its attempt to outlaw mandatory arbitration for complaints filed under California's Fair Employment and Housing Act (FEHA) and the supporting Labor Code. The law applies to "contracts for employment entered into, modified, or extended on or after January 1, 2020. The new law does not apply to post-dispute settlement agreements or "negotiated severance agreements," nor does it apply to persons registered with a "self-regulatory organization," as defined by the Securities Exchange Act of 1934.
Why this law may be an issue: Generally, the Federal Arbitration Act, 9 U.S.C. ยง 1, et seq., (FAA) preempts state laws that attempt to regulate or restrict arbitration agreements more strictly than other types of contracts.
AB 51, however, expressly states that it does not invalidate a written arbitration agreement that is otherwise enforceable under the FAA. Given this language is untested in California at this time, it remains to be seen whether this "disclaimer" language will suffice to save AB 51.
Employers [who have California employees] need to look at the practice, as well as the actual language by which their current employees, applicants and even independent contractors enter (or have entered) into arbitration agreements in California to assess risks in light of this new California law.

Full text of this new law can be found HERE.
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 or Lisa at
DISCLAIMER: All content in this Monday Morning Minute is intended for general information only, and should not be construed as legal advice applicable to your particular situation.  No attorney-client relationship is created. Before taking any action based on the information contained herein, you should consider your personal situation and seek professional advice.