I INTRODUCTION

Employers in the United States face a number of constantly evolving challenges to comply with the wide variety of laws that govern their employment arrangements. These challenges are magnified by the fact that employment relationships are not governed by a single statutory framework. Unlike many other countries, the United States has no general laws requiring an employer to have good cause for dismissal or to pay severance pay at the time of dismissal. The general principle is 'employment at will'. However, in place of a general obligation, the United States maintains many disparate laws that regulate employers and the employment relationship. The legal relationships between employers and their employees are governed simultaneously by federal, state and local laws, as well as common law principles. Depending on the issue, employers also must remain attuned to conflicting judicial decisions and interpretations across the country, which may further complicate their efforts to comply with applicable employment laws. While the remedies available to employees under these different employment laws frequently vary from one state or locality to another, a national or international employer generally applies uniform policies in a single country wherever possible.

Determining which federal laws govern an employer's workplace typically requires, at minimum, an analysis of the employer's size and the locations where its employees work. For example, one of the most commonly invoked federal employment laws – Title VII of the Civil Rights Act of 19642 (Title VII) – prohibits employment discrimination based on race, colour, religion, sex or national origin, and typically applies nationwide to all employers with 15 or more employees. Similarly, the Americans with Disabilities Act3 (ADA) – which includes provisions generally prohibiting employment discrimination on the basis of physical or mental disabilities – also applies to employers with 15 or more employees. The federal Age Discrimination in Employment Act4 (ADEA), however, generally applies to employers with 20 or more employees.

There also are many federal statutes that require other types of analyses to determine their application to the workplace.5 For example, the federal Family and Medical Leave Act,6 which generally provides up to 12 weeks of unpaid leave for qualified family and medical reasons for oneself or for a family member, applies only if the employer has at least 50 employees within a 75-mile radius of the location where the employee works. The Fair Labor Standards Act (FLSA), which generally establishes a federal minimum wage along with record-keeping requirements, child labour restrictions and certain eligibility standards and exemptions regarding payment for working overtime, does not depend on a specified number of employees. Instead, an employer is subject to the FLSA if its annual gross volume of sales made or business done is at least US$500,000.7 As a practical matter, the FLSA applies to the overwhelming majority of employers in the United States.

In addition to these and many other federal employment laws and administrative regulations, states and cities also have the power to enact their own employment laws. The overwhelming majority of the 50 states have done just that, in many instances expanding the obligations on employers above and beyond the scope of federal employment laws. To make matters even more complex for employers, cities and counties are passing, with increasing frequency, ordinances and regulations that impose further obligations on employers in the United States. One illustrative example of this trend is minimum wage laws. Although the FLSA has, for many years, imposed a general federal minimum wage of US$7.25 per hour,8 more than half of the states have historically established higher minimum wage requirements that apply to employees working in that state. In recent years, an increasing number of the largest cities and the most expensive cities have raised the bar even further with higher minimum wages of their own, with variations sometimes dependent upon the size of the employer's local workforce.

In sum, employers with employees who are located in the United States, particularly larger employers with workplaces located across the country, must be especially vigilant to ensure that they have both a national perspective and a good understanding of the numerous state and municipal employment laws that govern their workplaces.

II PROCEDURE

Much like the many employment laws that govern the workplace, there also are a variety of procedures available for resolution of employment-related disputes. Of course, many disputes are resolved by the parties through compromise agreements without the need for litigation. The United States does not maintain separate labour courts. When a dispute is not resolved by compromise, the employee typically files a complaint in a federal or state court. In many cases, a jury trial is available. For certain types of matters, the dispute between an employer and employee must be presented to a federal, state or local agency tasked with administering specific employment laws. Parties to employment disputes also frequently resolve them through arbitration tribunals when the parties have agreed to arbitrate, which most typically occurs in employment agreements requiring arbitration or through collective bargaining agreements.

The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with administering and enforcing federal civil rights laws prohibiting workplace discrimination. Certain federal statutes, such as Title VII, the ADA and the ADEA, include mandatory procedures that require employees to exhaust certain administrative procedures at the EEOC or, where applicable, parallel state agencies before proceeding with lawsuits in federal court.

In contrast, many state laws that prohibit employment discrimination do not require exhaustion of administrative procedures as a condition of filing a lawsuit. Therefore, employees in those states can file a lawsuit in court almost immediately after an adverse employment action, such as the termination of their employment. The statutes of limitations under state employment laws are also, in many instances, far more favourable for employees than under federal law and allow plaintiffs to seek substantially greater damages than may be available under federal law.

In addition to pursuing their own individual claims, employees can seek to proceed with mass, class or collective action cases on behalf of one or more classes of similarly situated employees. Depending on the specific claims that are made and the type of relief that a plaintiff seeks, such actions typically proceed as opt-out or opt-in class actions in those cases where the court determines that the requirements for class certification have been satisfied. In an opt-out employment case, all similarly affected employees who are included as part of the court-certified class are bound by the court's final judgment unless they have specifically opted out by the court-ordered deadline. An opt-in employment case, on the other hand, requires each employee who may be interested in joining the lawsuit to file a consent form expressing an intention to do so. In some circumstances, such as wage and hour lawsuits brought concurrently under federal and state law, a case may include both opt-out and opt-in classes.

III TYPES OF EMPLOYMENT DISPUTES

There are many types of employment-related claims that individuals can bring under federal, state and local employment laws in the United States. Claims can arise out of all aspects of the employment relationship, including hiring, firing, promotions, disciplinary actions, pay-related claims and employment contracts. While this chapter cannot cover every available theory of employment-related disputes, three types of lawsuits that are commonly filed are cases alleging discrimination or harassment, unlawful retaliation or wage and hour violations.

Allegations of discrimination or harassment under federal law are typically based on one or more of the following protected categories: age, race, colour, religion, sex, national origin and physical or mental disability. There are many other protected categories under federal or state (or both federal and state) anti-discrimination laws, such as sexual orientation, pregnancy, ancestry, gender identity, citizenship status, genetic information, marital status, military or veteran status and immigration status. In addition to allegations involving discrimination, employment claims often include allegations of sexual harassment or harassment based on any of the protected categories.

Retaliation claims also are a frequent subject of litigation in the United States. Many federal, state and local statutes that proscribe discrimination also have provisions explicitly prohibiting retaliation against employees for exercising their rights under those statutes (or associating with others). A number of federal and state statutes also provide protection from retaliation by employees who act as corporate whistle-blowers. There are several other types of retaliation claims that employees routinely pursue. For example, most states permit claims of wrongful discharge for public policy reasons (such as retaliation for refusing to commit an illegal act or for exercising a legal right).

Wage and hour claims, whether filed individually or as class or collective actions, are another frequently litigated subject in US courts. Wage and hour lawsuits under the FLSA or state law often include claims by employees for overtime pay, missed or interrupted meal and rest periods, and for the alleged misclassification of employees as exempt from federal and state overtime requirements. Here, too, wage and hour requirements and statutes vary widely. In addition to different minimum wage laws from one state or city to another, some states and cities impose other requirements in favour of employees who work there. The state of California, for example, generally requires employers to pay different rates of overtime to eligible employees who work more than eight or 12 hours in a day, regardless of how many hours they may work in a week.9 The federal FLSA, in contrast, only requires overtime pay for eligible employees who work in excess of 40 hours in a workweek.10

IV YEAR IN REVIEW

We discuss below four of the most significant employment law developments in 2019. First, states have continued to introduce new requirements in an attempt to address sexual harassment concerns in the wake of the #MeToo movement. Second, the US Supreme Court resolved a split among federal appellate courts concerning the jurisdictional nature of Title VII's charge-filing requirement. Third, the National Labor Relations Board (NLRB) has issued a series of employer-friendly decisions that have restricted union activity. Finally, the US Department of Labor (DOL) has finalised its long-awaited overtime pay regulations.

i Mandatory sexual harassment training requirements

Employers in the United States have continued to feel the impacts of the #MeToo movement. In particular, six states recently enacted legislation establishing or expanding sexual harassment training requirements in the workplace.11 Generally, employers meeting a certain minimum threshold of employees are required to promptly provide training upon hiring or promoting an employee, and are subject to civil penalties if they fail to do so.

In California,12 the passage of Senate Bill 1343 requires employers with at least five employees to provide two hours of sexual harassment prevention training to supervisory employees and one hour of training to non-supervisory employees within six months of hire or promotion, and every two years thereafter.13 Seasonal, temporary, and other short-term employees must also be trained within 30 days of hire or 100 hours worked, whichever comes first.14 Previously, only employers with at least 50 employees were required to provide two hours of sexual harassment prevention training, and only to supervisors. Moreover, Senate Bill 1343 requires the California Department of Fair Employment and Housing to make available to employers online interactive training courses.15 In October 2019, after employers experienced some confusion over the law's requirements, California Governor Gavin Newsom signed Senate Bill 77816 to clarify the law's new anti-harassment training requirements and extend the deadline for complying with them from 1 January 2020 to 1 January 2021.17

In Connecticut,18 the Time's Up Act mandates that all employers with at least three employees provide two hours of sexual harassment training to all employees within six months of hire or promotion.19 Employers with fewer than three employees are required to provide training only to supervisory employees.20 Connecticut also mandates providing supplemental training once every 10 years.21 Previously, the state required that only employers with at least 50 employees must provide training, and that training be provided only to supervisors. In addition, the Connecticut Commission on Human Rights and Opportunities may deem any employer failing to comply with training requirements to be engaging in a 'discriminatory practice'.22 These expanded requirements for mandatory sexual harassment prevention training took effect on 1 October 2019.

In Delaware,23 the state amended its Discrimination in Employment Act to introduce sexual harassment training requirements effective as of 1 January 2019. Employers with at least 50 employees (not including applicants or independent contractors) in the state must provide training to employees within one year of their hiring and every two years thereafter.24 New supervisors must receive additional interactive training within one year of their hiring or promotion.25 While the length of the training is not specified, the law requires certain topics to be covered, including the definition and examples of sexual harassment, legal remedies available to an employee, guidance on how to contact the Delaware Department of Labor, and the illegality of sexual harassment and retaliation.26

In Illinois,27 beginning on 1 January 2020, all employers must provide sexual harassment prevention training at least once a year to employees.28 Under the Illinois Workplace Transparency Act, which amended the Illinois Human Rights Act, employers must use either the online model programme developed by the Illinois Department of Human Rights, or one that meets the minimum standards provided by the model.29 While the law does not specify the length of the training, it does require the training to explain what constitutes sexual harassment, provide examples of conduct of this kind, summarise state and federal laws concerning sexual harassment and explain employer duties and responsibilities pertaining to the investigation and prevention of sexual harassment.30 Illinois also imposes additional requirements on hotels, casinos, bars and restaurants.31

In New York,32 the state enacted measures in 2018 mandating that all employers provide annual, interactive sexual harassment prevention training to all employees (including part-time, seasonal and temporary workers).33 Initially subject to a deadline of 9 October 2019, the measures required New York employers to provide an employee with sexual harassment policies and training materials in English and the employee's primary language34 at the time of hiring and during each annual training programme.35 They also must use the model sexual harassment prevention training programme provided by the New York State Division of Human Rights and the New York Department of Labor, or establish a programme that equals or exceeds the minimum standards of the programme, covering topics such as the definition of harassment and the legal rights of employees.36 Notably, New York City recently enacted the Stop Sexual Harassment in NYC Act37 to impose training requirements on employers with 15 or more employees as well, and on 11 January 2020, expanded them to apply to not only employees and interns, but also independent contractors and freelancers.38

Finally, in Washington,39 the state enacted Senate Bill 5258 on 13 May 2019 to establish annual anti-harassment training requirements but only in certain industries – specifically, retail, hotel, motel, security and property services contractors (i.e., persons or entities that employ workers that provide commercial janitorial services, with some exceptions). The definition of 'employees' for whom training is required is limited to those who are employed as janitors, security guards, hotel or motel housekeepers, or room service attendants, and who spend a majority of working hours alone, or whose primary responsibilities involve working without another employee present.40 Hotels and motels with 60 or more rooms were required to comply by 1 January 2020, while all other employers must comply by 1 January 2021.41

While training requirements have been a major focus of state legislation, employers have also had to take steps to comply with other new state requirements relating to sexual harassment. For example, Connecticut introduced notice requirements and granted the state human rights commission the authority to inspect workplaces to ensure compliance with them.42 Furthermore, Illinois has prohibited the use of mandatory arbitration or non-disclosure or non-disparagement provisions that cover harassment or discrimination claims unless certain conditions are met.43 With effect from 1 July 2020, and by 1 July each year thereafter, Illinois also requires employers to disclose to the Illinois Department of Human Rights (IDHR) any adverse judgments or administrative rulings from the preceding calendar year in which there was an allegation of sexual harassment or unlawful discrimination.44 The IDHR also may require employers responding to charges of discrimination to submit the total number of settlements entered into during the preceding five years that relate to alleged acts of sexual harassment or unlawful discrimination.45 Employers can expect states to continue to enact significant new measures seeking to combat harassment in the workplace.

ii Non-jurisdictional nature of Title VII's charge-filing requirement

In June 2019, the United States Supreme Court issued its decision in Fort Bend County, Texas v. Davis.46 The Court unanimously held that the requirement in Title VII of the Civil Rights Act that an employee file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) prior to commencing an action in court47 is not 'jurisdictional', but rather is a claims-processing rule that may be forfeited if not raised in a timely manner.48

Prior to filing a lawsuit, the plaintiff, Lois Davis, submitted an EEOC charge against her employer, Fort Bend County, alleging sexual harassment and retaliation for reporting the harassment in violation of Title VII, which prohibits discrimination in employment on the basis of race, colour, religion, sex, and national origin.49 Davis subsequently sought to supplement the allegations of her charge by handwriting 'religion' on the 'Employment Harms or Actions' part of her intake questionnaire but did not make any changes to the formal charge document.50 After receiving a notice from the Department of Justice of her right to sue, Davis brought her action, alleging both religious discrimination and retaliation for reporting sexual harassment.51 However, following years of litigation, only the religion-based claim had remained in the case, at which time Fort Bend raised a new argument that the district court lacked jurisdiction to adjudicate the claim on the ground that Davis did not make such a claim in her EEOC charge.52

In an opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court rejected Fort Bend's argument. Because the charge-filing requirement has no link to Title VII's statutory jurisdictional language giving federal courts the power to hear Title VII claims, and instead is in a part of Title VII that speaks only to a party's procedural obligations when bringing such claims, the Court held that it was a claim-processing rule.53 Moreover, the Court concluded that an objection based on such a rule may be 'forfeited if the party asserting the rule waits too long to raise the point'.54 Accordingly, the Court found that Fort Bend had waived its objection to Davis' failure to raise her religious discrimination claim in her EEOC charge.

The Supreme Court's ruling resolved a circuit split, rejecting contrary decisions issued by the Fourth and Tenth Circuits. In doing so, however, the Court did not define what is considered 'too long' to wait to object to a plaintiff's failure to file a charge and exhaust administrative remedies before bringing an action. To avoid losing this key defence, employers may need to raise it at the time the employer answers or responds to the complaint. In addition, beyond its consequences for Title VII actions, Fort Bend County may have similar implications for litigation of employment discrimination and retaliation claims under comparable state law provisions, given that state courts often find federal courts' interpretations of Title VII to be persuasive, even though they are not binding.

iii NLRB decisions disfavouring union activity

The NLRB continued its recent trend of issuing significant decisions tending to favour employers over union activity allegedly protected under Section 7 of the National Labor Relations Act (NLRA). In so doing, the NLRB has overturned a number of important precedents. The following discussion focuses on a few key examples from 2019.

In Kroger Limited Partnership I Mid-Atlantic,55 the NLRB scaled back a prior NLRB expansion of employee union access to an employer's property. Pursuant to the US Supreme Court decision in NLRB v. Babcock & Wilcox, Inc,56 one exception to the general rule that an employer cannot be compelled to provide access to its property is that, when an employer has provided this access to other non-employees, an employer cannot discriminate against non-employee union organisers, but rather must provide them similar access.57 The NLRB found that its previous standard 'improperly stretched the concept of discrimination well beyond its accepted meaning'.58 It concluded that, for a union to establish its right to access, the union's activity must be of the same nature as that involved in the prior access provided to other non-employees. As a result, the NLRB held that the employer in Kroger did not improperly discriminate in barring union representatives from soliciting its customers to sign a petition protesting against the employer, because the employer had not permitted groups such as fraternal societies and religious organisations access for similar organising activity, and because this organising activity was different from the charitable, civic, or commercial solicitations that the employer may have permitted.59

In Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino,60 the NLRB reinstated the standard from its 2007 decision in Guard Publishing Co. d/b/a Register Guard61 that permits an employer to prohibit employees from using the employer's information technology equipment for union activity protected by Section 7.62 As such, the NLRB found that hotel rules barring the use of computers to, for example, '[s]olicit for personal gain or advancement of personal views' or '[s]end chain letters or other forms of non-business information' are permissible.63 Nonetheless, the NLRB observed that in 'rare' circumstances, employees may have the right to use an employer's information technology equipment for activity protected by Section 7 if it is the only reasonable means for communication, and a facially neutral restriction may be deemed unlawful if it is applied in a discriminatory manner.64

Yet another notable NLRB reversal of Obama-era decisions concerns confidentiality rules pertaining to investigations conducted by employers. According to the majority in Apogee Retail LLC d/b/a Unique Thrift Store,65 the NLRB's 2015 Banner Estrella Medical Center decision66 did not properly weigh employer interests when it permitted an employer to bar discussion of investigations 'only where the employer shows that it has a legitimate and substantial business justification that outweighs employees' Section 7 rights' to discuss discipline or ongoing disciplinary investigations.67 Instead, applying the tripartite framework established in Boeing Co,68 the NLRB held in Apogee Retail that because 'the justifications associated with investigative confidentiality rules applicable to open investigations will predictably outweigh the comparatively slight potential of such rules to interfere with the exercise of Section 7 rights', such rules are properly considered under Boeing 'Category 1', and are therefore presumptively lawful.69 And while the rules at issue in Apogee Retail were not limited to open investigations and thus were 'Category 2' rules that warranted individual scrutiny, the NLRB also found those rules to be permissible because they 'do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline', and as a result, had a 'relatively slight' impact on Section 7 rights.70

iv US DOL regulations on overtime pay

An issue of keen interest to most employers in the United States is overtime pay regulations, and this matter has engendered significant debate, lawsuits and uncertainty for employers in recent years. To be exempt from overtime pay requirements under the FLSA, employees must be paid a salary of at least the threshold amount and meet certain duties tests. If the employees are paid less than the threshold or do not meet the duties tests, the FLSA requires that they be paid 1.5 times their regular hourly rate for all time worked in excess of 40 hours in a workweek. In September 2019, the DOL finalised its updated rules on the minimum salary threshold employees must be paid to be properly classified as exempt.71 Taking effect on 1 January 2020, the salary threshold for executive, administrative, and professional exemptions under the FLSA increased from $23,660 per year (equating to $455 per week) to $35,568 per year (equating to $684 per week).72 In addition, the 'highly compensated employee' exemption threshold increased from $100,000 to $107,432 per year.73 The duties tests remain the same.

Furthermore, the DOL now permits employers to use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 per cent of the salary threshold for the executive, administrative, and professional exemptions.74 However, discretionary bonuses cannot be counted towards satisfying the salary threshold.75 In addition, the DOL is allowing employers to make catch-up payments to employees who do not earn enough in non-discretionary bonuses or incentive payments in a given 52-week period to retain exempt status, provided that the catch-up payment is made within one pay period of the end of the year.76

Notably, these new rules are not as ambitious as the 2016 rules that the Obama administration had proposed but that a federal district court subsequently enjoined from taking effect.77 For example, the DOL rules effective in 2020 raise the minimum salary thresholds to lower amounts than the DOL had proposed in 2016 ($35,568 instead of $47,892 per year for most employees, and $107,432 instead of $134,004 for highly compensated employees). The 2020 rules also do not implement automatic increases in the salary thresholds every three years, as the DOL had proposed in 2016.78 This is a victory for employers concerned about having to reclassify additional exempt employees as non-exempt, or to incur additional overtime pay obligations for certain newly hired employees, or both.

V OUTLOOK AND CONCLUSIONS

Employers in the United States should expect additional changes in administrative agency decisions and interpretations in 2020, particularly as Trump administration appointees at the NLRB, DOL and other federal agencies revisit Obama-era initiatives. We anticipate a continuation of more employer-friendly rulings and policy changes in the lead-up to the November 2020 presidential election. For example, the NLRB is expected to move forward with its amendments to union election procedures after having finalised its first set of regulations of this kind on 13 December 2019.79 And the DOL is likely to implement additional changes to overtime pay requirements under the FLSA. On 5 November 2019, the DOL published a proposed rule that, if adopted, would include bonuses, 'premium' payments (e.g., higher pay for working a night shift), and other additional pay in an employee's regular rate of pay for purposes of calculating any overtime pay for that week.80

The US Supreme Court also is poised to decide a number of highly watched discrimination-related issues for employers. On 22 April 2019, it granted certiorari in three cases raising the question of whether Title VII's prohibition of harassment on the basis of sex extends to discrimination on the basis of sexual orientation or gender identity.81 Having heard oral arguments on 8 October 2019, it is expected to issue a decision in 2020.82 Furthermore, the Supreme Court is expected to hear arguments in a pair of cases that will decide the scope of the ministerial exception to claims of discrimination under federal law for religious employers.83


Footnotes

1 Andrew S Rosenman is a partner and Elaine Liu is an associate at Mayer Brown LLP.

2 42 U.S.C. §§ 2000e et seq.

3 42 U.S.C. §§ 12101 et seq.

4 29 U.S.C. §§ 621 et seq.

5 It would be impracticable to try to address, in a single chapter, all applicable federal employment laws in the United States, so we have limited the discussion here to some of the most commonly analysed and frequently litigated statutes.

6 29 U.S.C. §§ 2601 et seq.

7 29 U.S.C. §§ 201 et seq.

8 29 U.S.C. § 203.

9 Cal. Labor Code § 510(a).

10 29 U.S.C. § 207(a).

11 Maine is another state that long has had specific training requirements. Most recently, in 2017, Maine's legislature amended its law to add penalties for violating its requirement that employers with 15 or more employees in the workplace conduct an education and training programme on sexual harassment for all new employees within one year of commencement of employment. 26 M.R.S.A. § 807(3), (6)(B).

12 Cal. Gov. Code § 12950.

13 id. § 12950.1(a)(1).

14 id. § 12950.1(f).

15 id. § 12950.1(k).

17 Cal. Gov. Code § 12950.1(a)(1).

18 Conn. Gen. Stat. § 46a-54(15)(C).

19 id. § 46a-54(15)(C)(i).

20 id. § 46a-54(15)(C)(ii).

21 id. § 46a-54(15)(C).

22 id. § 46a-51(8).

23 19 Del. Code § 711A.

24 id. § 711A(g)(1)–(2), (6)(a).

25 id. § 711A(g)(4).

26 id. § 711A(g)(3).

27 775 Ill. Comp. Stat. § 5/2-109.

28 id. § 5/2-109(C).

29 id.

30 id. § 5/2-109(B).

31 See, e.g., id. § 5/2-110(D) (requiring, for example, the provision of supplemental training on activities related to the restaurant or bar industry, as well as English and Spanish language options); 820 Ill. Comp. Stat. 325/5-10 (requiring, for example, hotels and casinos to provide employees with copies of the anti-sexual harassment policy in both English and Spanish).

32 N.Y. Lab. Law § 201-g.

33 id. § 201-g(2).

34 If the primary language is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali, or Italian. https://www.ny.gov/combating-sexual-harassment-workplace/employers.

35 N.Y. Lab. Law § 201-g(2-a)(a).

36 id. § 201-g(2)(c).

37 N.Y.C. Admin. Code § 8-107(30).

38 id. § 8-107(23).

39 Wash. Rev. Code Ann. § 49.60.515.

40 id. § 49.60.515(3)(b).

41 id. § 49.60.515(4).

42 Conn. Gen. Stat. §§ 46a-54, 46a-97(d) (granting authority for the commission to enter an employer's place of business during normal business hours in the 12 months following the filing of a complaint by an employee against the employer, or if the executive director of the commission 'reasonably believes that an employer is in violation' of the sexual harassment posting and training requirements in id. § 46-54).

43 820 Ill. Comp. Stat. § 96/1-25(a)–(b) (providing that agreements with unilateral conditions barring disclosure or requiring arbitration of alleged unlawful employment practices are 'against public policy' and 'void' to the extent they prevent statements or deny a 'substantive or procedural right or remedy' relating to the practices); id. § 96/1-25(c) (providing conditions under which contractual provisions 'against public policy' are permissible).

44 775 Ill. Comp. Stat. § 5/2-108(B).

45 id. § 5/2-108(C).

46 139 S. Ct. 1843 (2019).

47 42 U.S.C. § 2000e–5(e)(1), (f )(1).

48 Fort Bend County, Texas, 139 S. Ct. at 1846.

49 id. at 1847.

50 id.

51 id.

52 id. at 1848.

53 id. at 1849.

54 id. (internal quotations omitted).

55 368 NLRB No. 64 (Sep. 6, 2019).

56 351 U.S. 105 (1956).

57 Kroger, 368 NLRB No. 64, slip. op. at 1.

58 id.

59 id., slip. op. at 2, 11.

60 368 NLRB No. 143 (Dec. 16, 2019).

61 351 NLRB No. 1110 (2007). In Caesars, the NLRB overruled its 2014 decision in Purple Communications, Inc., 361 NLRB No. 1050 (2014), which held that an employee with access to an employer's email system must be permitted to use it for Section 7 activity during non-working time, unless the employer could show special circumstances.

62 Caesars, 368 NLRB No. 143, slip. op. at 1.

63 id., slip. op. at 12.

64 id., slip. op. at 1.

65 368 NLRB No. 144 (Dec. 17, 2019).

66 362 NLRB No. 1108 (2015).

67 Apogee Retail, 368 NLRB No. 144, slip. op. at 3–5.

68 365 NLRB No. 154 (2017) (setting out three categories of rules: (1) rules that the NLRB designates as lawful to maintain, either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or the potential adverse impact on protected rights is outweighed by justifications associated with the rule; (2) rules that warrant individualised scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications; and (3) rules that the NLRB will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule).

69 Apogee Retail, 368 NLRB No. 144, slip. op. at 8.

70 id.

71 29 C.F.R. § 541.

72 id. § 541.600(a).

73 id. § 541.601(a)(1).

74 id. § 541.602(a)(3).

75 id.

76 id. § 541.602(a)(3)(i).

77 Nevada v. United States Dep't of Labor, 218 F. Supp. 3d 520 (E.D. Tex. 2016).

78 id. at 525.

79 29 C.F.R. § 102.

80 84 Fed. Reg. 59590 (Nov. 5, 2019).