Sexual Harassment in the Workplace

Web Admin - Friday, September 18, 2015

sexual harassment in the workplace, Illinois employment law attorneySome of the most damaging and costly issues that develop in the workplace are those related to sexual harassment. When sexual harassment is allowed to occur, it creates an environment that is less productive and opens the possibility for serious lawsuits. It is important for both employers and employees to understand their rights and responsibilities regarding sexual harassment. For employers, it provides a better understanding of what is required and how to prevent harassment. For employees, it serves as guidance for knowing what behavior rises to harassment.  

Harassment in Illinois  

Sexual harassment is prohibited by federal, state, and local law. Under Illinois law, sexual harassment is defined as any sexual advances or requests for sexual favors when they are not welcomed. Additionally, sexual harassment includes any conduct of a sexual nature when:  

1. Submission to such conduct is an implied or express condition of the victim’s employment; 

2. Submission to or rejection of such conduct is used as a basis for employment decisions related to the victim; or 

3. Such conduct substantially interferes with a victim’s work performance or creates an intimidating, hostile, or offensive environment. It is a civil rights violation for a person to engage in sexual harassment. 

Further, an employer is considered responsible for the sexual harassment of employees if the employer is aware of the conduct and does not take reasonable corrective measures. While sexual harassment is usually thought of as being sexual in nature, it does not need to be. Sexual harassment occurs when offensive remarks are made about a person’s gender. For example, a woman is sexually harassed if a person makes offensive comments to her about women generally. Victims and harassers can be either a man or a woman. Further, it is also possible for sexual harassment to occur between a victim and a harasser of the same gender.  

Preventing Harassment  

It is the responsibility of the employer to prevent sexual harassment. One of the ways in which this is accomplished is through the adoption and use of a sexual harassment policy. Ordinarily, this policy is part of the employee handbook that all employees should be given. The sexual harassment policy should contain the following: 

1. Definition of sexual harassment;  

2. A statement that harassment will not be tolerated, with disciplinary action for those who commit it; and 

3. A description of the procedure victims should take to file a complaint. Employers should also provide training and education on sexual harassment to both employees and those in supervisory or managerial roles. This training should explain what sexual harassment is, how complaints should be filed, and how complaints should be investigated and addressed.  

Legal Help for Employers and Employees 

For more information about the laws regarding sexual harassment in the workplace, contact a skilled Illinois employment law attorney today. Whether you are an employer or employee, our firm can help. We proudly serve communities throughout the northwest suburbs, including Deer Park, Inverness, Arlington Heights, Barrington, Buffalo Grove, Rolling Meadows, Des Plaines, Palatine, Schaumburg, and Crystal Lake.

      Ken Apicella

      About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.



Changes to Illinois Wage Payment and Collection Act Regulations

Web Admin - Friday, February 06, 2015

Illinois wage payment, Rolling Meadows employment lawyerLast year, the Illinois Department of Labor (IDOL) made a set of important changes to the regulations it uses to govern the Illinois Wage Payment and Collection Act. Although these changes are substantive and significant, relatively little has been publicized about the changes. Employers should take note of these new employment regulations to ensure that they are in compliance with the IDOL's new positions on various items, as they can have a serious impact on business operations. The new regulations make a variety of substantive changes, some of which are specific and mechanical, while others are broad and may represent new attitudes about enforcement at the IDOL.

The Illinois Wage Payment and Collection Act

The Illinois Wage Payment and Collection Act is a state statute that governs the way that employers are required to pay wages to their employees. These sorts of requirements include things like how often employers must pay their employees, how employers should handle final payments for terminated employees, and how to handle payments for striking workers. As with many laws, they are supported by a set of regulations. Unlike laws, regulations are promulgated by the administrative agencies that are tasked with enforcing the statute. Yet, like laws, regulations still have binding impact on employers, so it is important for employers to keep abreast of changes in the regulations.

The Changed Regulations

The IDOL recently changed the regulations that accompany the Illinois Wage Payment and Collection Act in a variety of different ways. These are just some of the more important changes.

The new regulations include a sweeping definition of an “agreement” between employees and employers. It means “a manifestation of mutual assent on the part of two or more persons.” The definition goes on to discuss the fact that agreements are broader than contracts and things like employee handbooks and past practices can constitute agreements, even over express disclaimers in some circumstances. This means that employers may end up binding themselves to prior wage practices permanently.

The new regulations also change certain notice and recordkeeping requirements. For instance, the regulations now require employers to provide written notice of a person's wage when they are hired and whenever that rate changes, to the extent possible. Additionally, employers must now keep records of the hours all employees work per week, regardless of whether any of the employees are actually subject to overtime requirements.

These are just some of the changes that the IDOL recently made to the Illinois Wage Payment and Collection Act regulations. If you are concerned about your company's compliance or believe that your employer is violating your rights as an employee, contact an Illinois employment law attorney today. Drost, Gilbert, Andrew & Apicella, LLC serves many different clients across the northwest suburban area, including in towns like Rolling Meadows, Buffalo Grove, Arlington Heights, and Deer Park.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Payment for Unauthorized Overtime

Web Admin - Friday, September 19, 2014

payment for unauthorized overtime, Palatine employment law attorneyThe law related to wage and hour violations is a complex legal area that touches virtually every employee. These laws lay out employees' rights with regard to things like when they may be paid, how much they must be paid, and the various overtime rules. The overtime rules are some of the most difficult, and can often lead to violations by employers, either knowingly or simply by virtue of not understanding their full complexity. Regardless of the reason for the violation, employees should be aware of their legal rights so that they can enforce them in case something goes wrong.

One of the most common issues that arises with overtime is the idea of “unauthorized overtime.” Many companies have a policy in place that requires employees to get supervisor permission before they work overtime, because overtime switches them to an increased hourly salary. However, this policy can cause confusion when an employee works unauthorized overtime. Some companies refuse to pay workers extra for unauthorized overtime work, but that refusal is a violation of federal law.

The Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) is the major piece of federal legislation governing things like overtime pay and wage and hour violations. For the purposes of the question about unauthorized overtime, the important section is 203(g), which defines the word employ. A company employs someone when it “suffer[s] or permit[s]” the person to work. Such a broad definition of the word employ means that even if the company has not authorized the overtime hours, they are still allowing the overtime work to happen. The fact that they allowed it at all means that the employee must be paid properly for their time, regardless of any company policy. However, employers are still allowed to take certain steps related to authorizing overtime.

What Employers May Do

Just because employers must pay their workers for unauthorized overtime does not mean that they are not allowed to have a system for approving overtime beforehand. Companies are allowed to decide whether they want their employees working extra time or would rather simply have the project completed at a later date. In fact, companies are even allowed to institute disciplinary procedures related to working overtime without the proper authorization. Yet, even with such procedures in place, if the employee still works overtime, they must be paid accordingly, even if they are also disciplined for violating the company policy related to unauthorized overtime.

Employees who have been the victim of wage and hour violations often feel powerless to stand up to their employers. If you believe that you are owed extra overtime pay, contact a skilled Illinois employment lawyer today. Our dedicated team can help provide you with the backup you need to enforce your legal rights as an employee. We assist clients in Palatine, Des Plaines, Buffalo Grove, and those throughout the suburban Chicagoland area.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Overtime Violations in Restaurants

Web Admin - Tuesday, May 27, 2014

illinois overtime violationsWage theft is an increasingly common practice in which employers deprive their workers of wages they are owed through practices like improperly logging their hours or simply failing to pay wages fully and promptly. The problem is serious enough that a report from the Center for Urban Economic Development at the University of Illinois at Chicago estimates that workers in Cook County lose more than one million dollars a day to the practice. One of the most common methods of wage theft is through the violation of overtime laws. Overtime in the restaurant industry is a particular problem because of how overtime rules interact with minimum wage provisions and the tip credit.

Understanding the Tip Credit

The tip credit is a specific exception to minimum wage law that allows employers to pay employees less than minimum wage on the assumption that the worker’s tips will make up the difference. Restaurants are one of the main industries that can take advantage of the tip credit because of their high percentage of tipped employees, such as servers and bartenders.

The exact amount of the tip credit varies by state. In Illinois, employers may deduct up to 40 percent of the Illinois minimum wage as tip credit, giving a new minimum wage of $4.95. The tip credit is a complex piece of the minimum wage law that can give rise to a variety of violations by employers. One of the most complicated of these issues related to the tip credit is how it interacts with overtime law.

The Tip Credit and Overtime

Generally speaking, overtime laws require employers to pay their workers one and a half times their hourly wage for working more than 40 hours in a week. However, restaurants and other employers can still take advantage of the tip credit. Unfortunately, many do so incorrectly. The issue is that many employers take the tip credit out before multiplying the hourly wage by one and a half, when they should take it out after. To illustrate the difference, suppose a server works 60 hours in one week and is paid $4.95 an hour plus tips.

For the first 40 hours, the employer can simply pay the $4.95, but for the last 20 they need to start paying overtime. The incorrect way to do the calculation would be to simply multiply the $4.95 wage by 1.5 giving a new wage of $7.43, which would result in a paycheck of $148.60 for those 20 hours. The proper way to perform the calculation is to multiply the full minimum wage, $8.25, by 1.5 to get $12.38, and then subtract the tip credit afterwards to get a minimum wage of $9.08 and a paycheck of $181.60, a serious difference from the incorrect calculation.

If you believe you have been the victim of an overtime violation, contact an Illinois employment lawyer today. Our firm helps clients in many towns across the northwest suburbs, including in Palatine, Barrington, and Schaumburg.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Common Methods of Wage Theft

Web Admin - Tuesday, February 11, 2014

illinois wage theft lawyerMore and more employees are facing issues related to wage theft. Even though many are not aware of what the term actually mean, legal claims related to it have been steadily rising in recent years.

Broadly speaking, wage theft happens when an employer illegally deprives an employee of wages that they are owed. In some cases that can mean subverting laws that guarantee certain benefits to employees, like the minimum wage law, while in others it can simply mean not abiding by the agreement between the employer and the employee, both of which are violations of the law. Wage theft can be broken down into two categories based on the method the employer uses, methods relating to simply depriving the worker of money they are owed, and methods relating to improperly documenting the worker or their pay.

Wage Deprivation

Wage deprivation methods involve improper payroll practices designed to deprive an employee of their pay. The simplest method of this is an employer’s failure to pay their employees on time. This can include tactics like withholding an employee’s last paycheck or paying them for only certain hours or days worked, rather than paying for all their time.

One common, similar method of wage theft involves withholding overtime pay. Under the Fair Labor Standards act, many employees are entitled to overtime if they work more than 40 hours a week. Employers often take advantage of confusion among employees as to whether they qualify and refuse to pay overtime. Fortunately, the Department of Labor maintains a guide explaining worker’s overtime rights.

Documentation Issues

Documentation issues are a slightly subtler version of wage theft. Rather than simply withholding wages, employers will adjust their payroll or misclassify employees to stop paying them everything that the employer owes them. One of the simplest documentation violations is agreeing to pay someone below the minimum wage ($8.25 currently), which is illegal. Employers may also adopt improper policies related to clocking-in, like forcing employees to work for a period in the morning before they start logging hours. These sorts of policies qualify as wage theft since employers owe employees for that time.

Additionally, employers could improperly classify their employees as independent contractors. Independent contractor is a specific legal status related to the amount of freedom a worker has to set their hours and perform tasks as they see fit. Most workers a business hires will not fall into this category, but an employer may try to label employees as this since it allows the employer to avoid things like workers compensation insurance and payroll tax by shifting the burden to the worker.

If you believe you have been a victim of wage theft, or have questions about your employer’s practices, get in contact with an Illinois employment lawyer. We serve clients in areas across the northwest suburbs such as Buffalo Grove, Barrington, and Arlington Heights.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Retaliatory Discharge in Illinois: The Basics

Web Admin - Tuesday, November 05, 2013

Under the “at will” employment doctrine, employers are typically able to fire an employee for virtually any reason. There are some exceptions, however, including statutory rules which prevent employment discrimination against certain protected classes. Another exception is known as a “retaliatory discharge.”

What It Is

Essentially, the law, as outlined by the Illinois Supreme Court, allows an employee to recover damages if they show that they were fired from a job for engaging in legally protected conduct and that their termination violated public policy interests. A 1978 Supreme Court case, Kelsay v. Motorola, Inc. was the first in the state to define this tort.

Historically, there are two general types of situations where employees have won retaliatory discharge cases. The first is where an employee was fired for making a worker’s compensation claim.  To prevail in these situations, the burden is on the employee to affirmatively show that the termination was spurred by their seeking worker’s compensation.

In addition, employers can be liable for a retaliatory discharge when they fire an employee for reporting on improper conduct or refusing to participate in that conduct. For example, in one Illinois case, Palmateer v. International Harvester, an employee was fired after going to the police to share information about a fellow employee’s illegal actions. In another case decided by an Illinois appellate court, an employee won a claim after being fired for refusing to falsify pension plans--which itself violated federal law.

Retaliatory Discharge Damages

To pursue one of these cases, an employee must file a civil lawsuit specifically alleging that they were terminated in violation of these rules. But what sort of damages can the employee recover if they win?

Under Illinois case law, employees who win a retaliatory discharge case are generally able to recover lost wages from the date that the termination occurred until they find a new job. However, that does not mean that the employee can simply do nothing and collect a paycheck. Instead, courts have ruled that the employee has a duty to mitigate their damages by taking reasonable steps to find permanent work.

In addition, depending on the specifics of the case, a plaintiff may also seek punitive damages. Punitive damages are intended to punish the conduct of the employer (instead of merely compensating the harmed party). These damages are only a possibility when the defendant’s conduct is particularly egregious. 

Legal Help

If you have questions about a potential retaliatory discharge case, contact a Palatine employment lawyer today. Call 847-934-6000 to speak to a member of our team. We serve many Northwest Suburban areas including Rolling Meadows, Buffalo Grove, Barrington, and other nearby communities.

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