by Joseph P. Kelly

On August 13, 2021, Governor Pritzker signed the Freedom to Work Act into law. The new law takes effect on January 1, 2022 and drastically affects the landscape of non-competition and non-solicitation restrictions in Illinois.

Here are the key takeaways:

• Non-competition restrictions are prohibited for employees earning $75,000 per year or less.
• Non-solicitation restrictions are prohibited for employees earning $45,000 per year or less.
• Employers must provided some sort of consideration (cash, vacation, etc.) for non-compete or non-solicit restrictions to be enforceable (unless an employee is employed for at least two years after signing. This isn’t new–the new law just codifies what Illinois courts have said about enforceability.
• Employees must be given at least 14 days to review an agreement with non-compete or non-solicit restrictions.
• The Illinois Attorney General can investigate potential violations and possibly impose civil penalties.
• Employees may recover their attorneys’ fees if they prevail in a suit brought by their employer to enforce non-compete or non-solicit restrictions.
• Non-compete and non-solicitation restrictions aren’t enforceable against employees who lose their job due to Covid-19 or a similar pandemic situation, “unless enforcement of the covenant not to compete includes compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement.”

Of note–the following will still be permitted:

• Confidentiality agreements.
• Trade secret and IP assignment agreements.
• Agreements entered into in connection with the sale of a business.
• Garden leave (agreements under which advance notice of termination is given, the employee remains employed during the notice period, and the employee receives compensation).
• No “reapplication” provisions – an employer can still prohibit an employee from reapplying for employment after termination.

The new law does not apply retroactively which means that the new law doesn’t apply to non-competition or non-solicitation agreements entered into before January 1, 2022. But after January 1, 2022, it’s a whole new ballgame so Illinois employers would be wise to review their current agreements to consider what changes they need to be making going forward.

by Joseph P. Kelly

Yesterday, Joe Biden signed the American Rescue Plan Act of 2021 which includes a 100% COBRA premium subsidy that will require immediate employer action.

The COBRA subsidy–which applies to all group health plans, except for flexible spending account coverage–will be available to all individuals enrolled or that will enroll in COBRA on or after April 1, 2021 and until September 30, 2021 when the subsidy ends.

What employers need to know:

Eligible individuals will receive the subsidy directly from the employer; the employer will be required pay the COBRA premiums and then will receive a payroll tax credit to recoup the subsidy cost.

Employers are required to either update their current COBRA notices or provide a separate notice describing the premium subsidy. The Department of Labor is required under the new law to provide model notices within 30 days. But affected employers shouldn’t wait for the model notices; instead they should work with their COBRA administrators to see if there are any individuals eligible for the subsidy–including former employees that may or may not have elected COBRA coverage. Failure to provide the required notice may result in a tax penalty.

by Joseph P. Kelly

Since 2015, Illinois employers have been prohibited from asking a prospective employee about their criminal background in applications or before granting an interview or making a job offer.

Earlier this month, the Illinois legislature passed Senate Bill 1480 which would amend the Illinois Human Rights Act to require Illinois employers—before refusing to hire a job applicant based on criminal history—to determine that (1) there’s a substantial relationship between an applicant’s criminal history and the position sought; or (2) hiring the applicant would lead to an unreasonable risk to property or the safety or welfare of specific individuals or the general public. The law doesn’t define “unreasonable risk.”

Senate Bill 1480 lists six factors for determining whether there’s a substantial relationship between an applicant’s criminal history and the position sought—namely, (1) the length of time since the conviction, (2) the number of convictions in the applicant’s criminal history, (3) the nature and severity of the conviction and its relationship to the safety and security of others, (4) the facts or circumstances the conviction, (5) the age of the applicant at the time of the conviction, and (6) evidence of rehabilitation efforts.

After evaluating those six factors, if an Illinois employer decides that it won’t hire the applicant, the bill requires the employer (1) notify the applicant in writing of its preliminary decision and the basis for same, (2) provide a copy of the criminal history report, if any, and (3) inform the applicant that they have the right to respond to the notice of preliminary decision within five business days before the decision becomes final. Specifically, the employer needs to tell the applicant that their response may include (but isn’t limited to) evidence challenging the criminal history report’s accuracy or evidence of mitigation—e.g. rehabilitation.

If after all of that, the employer still doesn’t want to hire the applicant, it must provide the applicant with a final notice identifying the conviction, explaining the basis of the decision, advising of existing internal procedures for requesting reconsideration, and advising the application of the right file a change of discrimination with the Illinois Department of Human Rights.

Illinois employers are required under the bill to conduct the same analysis and go through the same process when terminating an employee based on criminal history.

While the bill is not law yet, stay tuned—Governor Pritzker is expected to sign the bill into law in the near future. Bottom line–Illinois employers need to be very careful is an applicant or employee’s criminal history factors into an employment decision.

If you have any questions on any of the above, we’re here to help.

by Joseph P. Kelly

As you are undoubtedly aware by now, Governor Pritzker has initiated “Tier 3 Resurgence Mitigation” restrictions effective November 20, 2020 to help combat the Covid-19 crisis.

Many businesses with remote capabilities have opted to have their employees working from home since the beginning of the pandemic. Per the new restrictions, working remotely is mandated if possible. Specifically, the new restrictions provide hat “All employees who can work remotely should work remotely.”

Gatherings of 10 or more people are now barred in “Tier 3” with limited exceptions.

The new restrictions address specific industries as well such as retail, personal care services, and bars and restaurants. For more information, the full text of the new restrictions can be found here.

By Joseph P. Kelly

It’s back to school time … or at least kind of. Many schools are operating remotely. Some schools, like those here in Geneva, are operating on a “hybrid” schedule. That means that many students from Kindergarten to High School are learning from home at least some of the time. To say that these new school arrangements have made it tough for working parents is an understatement!

You may recall that way back in the Spring–in part to alleviate pressure on working parents–passed the Families First Coronavirus Relief Act (FFCRA). We wrote about the FFCRA in prior alerts here, here, and here.

The FFCRA mandates that employers provide paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. One of the specified reasons for such leave is to care for a child whose school is closed due to COVID-19.

The Department of Labor recently issued revised regulations interpreting the FFCRA in response to a court decision in New York. The revised regulations which took effect on September 16 are here.

Here are some key takeaways:

• Employers can’t require an employee submit documentation supporting their need for FFCRA leave before leave can be taken; an employee need only provide supporting documentation “as soon as practicable.”
• An employee is only entitled to FFCRA is an employer has work available. If there’s no work–whether because of a furlough, closure of a business location, or otherwise–then an employer isn’t required to give paid leave.
• Employees may take intermittent use of FFCRA leave upon employer approval. But the DOL clarified that the “employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis.” Per DOL, “[f]or the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

We all hope that there’s no longer a need for the FFCRA when it expires on December 31, 2020 but that seems unlikely. Perhaps it will be renewed at that point. Stay tuned!

By Joseph P. Kelly

The PPP loan program expired on August 8 and it remains to be seen whether it will be revived. For those businesses that received a PPP loan, the SBA, on August 11, issued 23 new frequently asked questions (FAQs) to help borrowers understand what comes next. All of the FAQs regarding “General Loan Forgiveness,” “Loan Forgiveness Payroll Costs,” “Loan Forgiveness Nonpayroll Costs,” and “Loan Forgiveness Reduction” are located here.

Here are some highlights:

General Loan Forgiveness FAQS:

Q&A No. 3 clarifies that borrowers don’t need to make any loan payments until the SBA has remitted the loan forgiveness amount to the lender.

Loan Forgiveness Payroll Costs FAQs:

Q&A No. 1 confirms payroll costs paid on or before the next regular payroll date after the Covered Period are eligible for loan forgiveness.

Q&A No. 2 confirms payroll costs incurred before the Covered Period but paid during the Covered Period are eligible for loan forgiveness.

Q&A No. 4 clarifies that the gross amount of cash compensation should be used when calculating cash compensation.

Q&A No. 5 clarifies that all forms of cash compensation, including commissions and bonuses, are considered payroll costs.

Q&As Nos. 6 and 7 explain what group healthcare benefit payments and retirement benefits are eligible for loan forgiveness.

Q&A No. 8 explains how much owner compensation is eligible for loan forgiveness.

Loan Forgiveness Nonpayroll Costs FAQs

Q&A No. 1 confirms nonpayroll costs incurred prior to the Covered Period, but paid during the Covered Period, are eligible for loan forgiveness.

Q&A No. 4 notes that interest on unsecured credit isn’t eligible for loan forgiveness.

Q&A No. 5 explains that payments made on recently renewed leases or interest payments on refinanced mortgage loans are eligible for loan forgiveness if the original lease or mortgage existed prior to February 15, 2020.

by Joseph P. Kelly

On July 16, 2020, the U.S. Department of Labor (“DOL”) issued new FMLA forms regarding leave under the Family Medical Leave Act (“FMLA”), which can be found here. The reason for the new forms–according to DOL–is to make it easier for employees and health care providers to understand the forms and complete the requisite paperwork. The new forms aren’t drastically different than FMLA forms previously issued by DOL. But it does appear that the new forms should be easier for employees and health care providers to complete.

Employers are not required to use DOL’s new forms for FMLA leave requests; employers may use forms previously issued by DOL or even an employer’s own forms. But, if an employer is unsure at all about what information it is obligated to provide upon a leave request under FMLA or what information it is permitted to ask for, it’s a good idea to use the new DOL forms.

There’s a distinct possibility that the new DOL forms will be revised at some point in the near future as DOL is requesting public comment on the new forms. If there are any changes, we’ll be sure to blog about them.

While there are new forms, there’s no new poster regarding FMLA for employers to post in the workplace. The old poster is still sufficient.

Lastly, it’s important to note though that the new forms don’t address paid sick leave or expanded FMLA leave under the Family First Coronavirus Response Act (“FFCRA”)(which we blogged about here and here). DOL hasn’t issued forms for FFCRA-related forms of leave.

By Joseph P. Kelly

As you undoubtedly know by know, Governor Pritzker is expected to move Illinois into “Phase 3” of the Restore Illinois plan tomorrow, May 29.

We previously posted here about OSHA guidelines for “essential businesses.”

With more businesses opening up in “Phase 3”, the Illinois Department of Commerce issued guidelines and toolkits for those businesses (link here).

Safety is paramount in this pandemic and best pratices dictate that Illinois employers do all that they can to focus on the health and safety of their workers, customers, and all other visitors.

By Christopher J. Graham and Joseph P. Kelly

There have been more developments regarding SBA paycheck protection loans and economic injury disaster loans that may be of interest:

SBA paycheck protection loans:

• New SBA regulations and guidance:

The SBA is updating its regulations and guidance, with the most recent FAQs coming on May 13. There are now 9 Interim Final Rules and 47 FAQs, which continue to be updated. You can find them in the program rules section of this link.

• IRS notice re tax deductibility of PPP-loan funded payroll and other costs:

The IRS also issued a notice regarding the deductibility of expenses funded with PPP loan proceeds, at least to the extent of loan forgiveness. For example, if a taxpayer funds payroll costs with PPP loan proceeds and the loan is forgiven as a result, the IRS would disallow ordinarily permitted tax deductions for those costs. The rationale is that the taxpayer really isn’t paying those costs; the government is via the SBA loan “grant.” The IRS position has been controversial. And on May 6, a bipartisan senate group proposed legislation (S.3612) to “clarify” that those types of costs would remain tax deductible, notwithstanding loan forgiveness; so maybe borrowers will be able to have their cake and eat it too?

• Some of the most recent SBA FAQs address:

Reduced loan forgiveness resulting from reductions in employees; employees refusing to be rehired:

As explained in a prior blog post, if you reduce your monthly average number of full-time equivalent employees during the 8-week period beginning from the initial loan disbursement—when compared to that monthly average for your base period, loan forgiveness is reduced proportionately. Some businesses reportedly were finding that with enhanced unemployment benefits under the CARES Act, employees were refusing to be rehired because they had a better short-term deal on unemployment; and the result for the employer would be reduced loan forgiveness. Although a reduction in full-time equivalent employees ordinarily would reduce loan forgiveness, SBA FAQ (# 40) creates an exception to the extent borrowers make a written offer to rehire an employee and the employee refuses the offer; but there must be supporting documentation of both the offer and rejection.
Additional special rules for seasonal employers:

See FAQ 41.

US companies owned by foreign entities:

See FAQ 44: To determine whether an applicant exceeds the 500-employee small-business loan eligibility threshold, the applicant must count all employees of its own and the employees of its U.S and foreign affiliates. Some had argued, based on wording in earlier SBA guidance, that only US-based employees were counted.

The good faith need certification and May 18 safe harbor to return loan proceeds:

As stated in prior blog posts, the CARES Act provides that, an “eligible recipient applying for a covered loan shall make a good faith certification— … that the uncertainty of current economic conditions makes necessary the loan request to support the ongoing operation of the eligible recipient ….” An SBA FAQ relating to “large companies” stated that “Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business.” A subsequent FAQ extended the same rule to “businesses owned by private companies.” Later SBA FAQs characterized the “large companies” FAQ as one that (1) “reminded all borrowers of an important certification required to obtain a PPP loan” and (2) “reminded borrowers to review carefully the required certification on the Borrower Application Form that ‘[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.’” Late Wednesday, the SBA issued this additional clarification:

Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

The SBA also created a safe harbor, now until May 18, for borrowers to reconsider this issue and possibly return loan proceeds – though if your loan was for less than $2 million, it appears that the need threshold is a bit easier to meet then before.

75% rule and 8-week period; litigation:

Treasury Secretary Mnuchin reportedly expressed openness to a “fix” that would change the percentage of loan proceeds that must be devoted to “payroll costs” to qualify for loan forgiveness from 75% to 50% and extend the time for using loan proceeds to more than 8 weeks. This reportedly followed complaints by certain industry groups, restaurants being among them, that the current structure was unworkable. There also are suits against the SBA challenging the validity of its guidance; so perhaps those suits will result in changes. For now, it’s still 75% and an 8-week period, and the guidance is what it is. But be alert for changes.

SBA economic injury disaster loans:

Congress recently authorized more money for this loan program. But, now, if you’re not a farmer, you need not apply. Farmers were given priority; no politics, of course! See this link for more details: https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/economic-injury-disaster-loan-emergency-advance#section-header-0.

By Christopher J. Graham and Joseph P. Kelly

It’s hard enough to do business with the havoc arising from the pandemic. Then, as you probably know, there has been a flurry of legislation, ostensibly to help businesses and employees. And there is potential “help” in some of the legislation, but also a substantial compliance burden, which for small businesses can be especially difficult to deal with.

Here’s a summary of some of what’s new:

• COBRA notice form and timing changes:

Many employers have laid off employees as a result of the pandemic. If your business has a group health insurance plan, there’s a new US Department of Labor form to provide notice to your employees of rights under COBRA and new extended times for employees to elect COBRA coverage. While not required, it’s best to use the DOL form to avoid any claim that the notice was legally insufficient and potential adverse consequences. See here for more details and the form.

• Illinois workers compensation Covid-19 presumption – repeal:

Last month, the Illinois Workers Compensation Commission approved a new “emergency” Rule providing that certain employees who contracted COVID-19 would be rebuttably presumed to have contracted the virus in the course of employment. But that Rule has since been repealed.

• Governor Pritzker’s modified stay-at-home order and plan to re-open Illinois:

You’ve likely seen these but here’s a link to the modified stay-at-home order and here’s a link to the plan to reopen up Illinois.

• Emergency paid sick leave act and emergency family and medical leave expansion act—regulations and FAQs:

We provided an overview of these new laws in prior alerts here, here, and here.

Most of you presumably have posted or otherwise circulated the required poster for your employees about the new laws. And if your employee makes a claim for paid leave under either new law, there is now a mountain of regulations and guidance from the Department of Labor and IRS to wade through, in addition to the statutes. This is not an easy compliance burden for small businesses and the new laws apply even for businesses with a single employee.

Here is a link to the DOL regulations. And here is a link to the DOL guidance in the form of answers to Frequently Asked Questions, modified most recently on Friday. There are now 93 DOL FAQS!

There also are related IRS regulations and FAQS and forms for tax credits and advances that, assuming you jump through the hoops, should be there to fund required paid leave; the credits/advances also are available for certain self-employed persons for qualified sick leave and family leave equivalent amounts. Here are the IRS FAQs on the paid leave credits/advances.

If you get a paid leave claim, you will need to document the claim consistent with the DOL regulations and FAQs, whether you pay the claim or not. All paid leave claims also must be documented as required to obtain available tax credits or advances. Paid leave records also must be retained for at least 4 years. See the FAQs for details.

Although hardship exemptions may be available for businesses with less than 50 employees, there’s a compliance and documentation requirement for the exemption to apply.

If you have more than 50 employees and are already required to provide unpaid leave under the Federal Family and Medical Leave Act, there are details in the regulations and FAQs about coordinating the new paid leave with unpaid leave under the “old” Act. If you do business in a jurisdiction with State or local paid leave law (Chicago, for example, has a paid leave ordinance; the State of Illinois does not), you will need to coordinate your obligations under each law.

The DOL has enforcement powers and there are penalties for failure to comply; employees have the right to bring claims as well.

• Payroll tax deferral and employee retention credit:

Payroll tax deferral was another new benefit for employers under the CARES Act – with certain 2020 payroll tax payments deferred until 2021 (50%) and 2022 (50%). The IRS has issued additional guidance on how this works. One clarification that’s been made: if you receive an SBA paycheck protection loan, you may benefit from payroll tax deferral, but only until the loan is forgiven; before the recent guidance, it was unclear before whether if you received a “PPP” loan, you also could benefit from deferral.

There are now detailed IRS FAQs about employee retention tax credits here. If you receive a paycheck protection loan, however, you are not eligible for these credits.

If you haven’t done so already, you should be coordinating with your tax advisor and payroll service on the tax matters identified above.

The SBA continues to issue new “guidance” and regulations almost every other day it seems—with more expected next week; and we expect to blog further about some of the new guidance soon.