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.



The Family Medical Leave Act

Web Admin - Thursday, May 21, 2015

FMLA, Illinois, Crystal Lake employment lawyerFor various medical-related reasons, it may be necessary for a person to temporarily stop working. The Family Medical Leave Act (FMLA) provides individuals with a means for doing this without running the risk of losing their job. It is important for both employers and employees to understand this special area of employment law.

What Does the FMLA Provide?

The FMLA allows workers to take an unpaid leave of absence from work for specified medical and family purposes with the continuation of insurance coverage according to the same provisions as if the employee did not take the leave of absence. Under the FMLA, an employer must return the employee to the same job or one that is nearly identical or equivalent. A nearly identical job includes the following:

  1. - Identical pay and benefits;
  2. - The same shift or general work schedule;
  3. - A geographically proximate worksite; and
  4. - The same or substantially similar duties, responsibilities, and status.

An eligible employee is eligible for 12 workweeks of leave in a one-year period for:

  1. - Childbirth and to provide for the child within twelve months of the birth;
  2. - The care of a child adopted or placed under foster care within one year of the placement of the child with the employee;
  3. - The care for a direct family member who has a serious health condition;
  4. - A health condition that prohibits the worker from being able to perform essential job functions; or
  5. - Any demand due to the fact that the employee’s direct family member is a covered military member on covered active duty, which is defined as duty during the deployment to a foreign country.

Alternatively, an eligible employee may be entitled to 26 workweeks of leave during a one-year period to care for a covered service member with a serious injury or illness if the employee is the service member’s direct relative.


The FMLA applies to the following:

  • - Public agencies; and
  • - Private employers with 50 or more employees for at least 20 weeks in the current or previous calendar year.

In order for an individual to be eligible, the employee must:

  1. 1. Work for a covered employer;
  2. 2. Have worked 1,250 hours during the 12 months prior to the start date of the leave;
  3. 3. Work at a location where the employer has 50 or more employees within 75 miles; and
  4. 4. Have worked for the employer for 12 months.

The 12 months of work does not need to be consecutive. Further, under most circumstances, only employment within the last seven years is counted.

For more information about the requirements of the FMLA, whether you are an employer or employee, you should speak with an experienced Illinois employment law attorney. Our firm represents clients throughout the northwest suburbs, including Deer Park, Buffalo Grove, and Crystal Lake. 

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.

Employee Misclassification and Why It Matters

Web Admin - Monday, March 30, 2015

employment contract, Illinois employment law lawyerThe relationship between employers and employees comes with many legal complexities, and there are times when employers can improperly curtail employees' rights, either by accident or design. One common place where this sort of issue arises is through employee misclassification, the practice of designating an employee as an independent contractor. Although the decision of which of those classes a worker falls into is one for a court to decide, many employers choose to make an improper classification in order to avoid having to provide things like overtime pay or workers' compensation insurance.

What Misclassification Is

There are two classes of worker for many employment law purposes: employees and independent contractors. Generally speaking, the difference between the two is the amount of control that an employer exercises over them. The more control, the more likely the court is to find that an employer/employee relationship exists. However, there are actually a variety of factors that courts look to, including:

  • - How much direction the employer gives in how to complete tasks;
  • - The type of evaluation system the worker operates under;
  • - Whether the business trains the worker;
  • - Whether the business reimburses the worker's expenses;
  • - Whether the worker can work for other employers;
  • - How the worker is paid;
  • - Whether the relationship is intended to be long-term; and
  • - Whether the worker's services are a key part of the business.

Examples can often be helpful to understand whether someone qualifies as an employee or an independent contractor. For instance, a secretary working at an office for years probably qualifies as an employee because of the high amount of control the employer would retain, as well as the other factors. Conversely, an IT worker hired to set up the company's network would probably be an independent contractor because they are going about the work in their own way, and the job's duration is limited.

Why It Matters

This distinction matters because it affects the responsibility that an employer has towards the worker. Many of the legal protections afforded to workers are only given to people in an employer/employee relationship. For instance, many employers misclassify their employees in order to avoid paying overtime pay or to avoid providing workers' compensation insurance. They can also use misclassification to shift tax burdens onto the worker, by avoiding things like unemployment insurance and Social Security taxes.

A worker's classification is a matter for courts to decide, and how an employer has elected to treat the worker is immaterial. If you believe that you have been misclassified and are losing access to benefits like overtime pay or workers' compensation benefits, contact an experienced Illinois employment lawyer today. Drost, Gilbert, Andrew & Apicella, LLC serves workers in many northwest suburban towns, such as Rolling Meadows, Schaumburg, Inverness, Deer Park, and Arlington Heights.

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.

Employers Offering "Comp" Time Instead of Overtime

Web Admin - Tuesday, March 11, 2014

illinois overtime employee lawyerMany employees are owed overtime by their employers under the Fair Labor Standards Act (FLSA) once they work more than 40 hours in a week. Illinois also has a separate wage and hour law that comes into effect at the same 40-hour mark. While many employers dutifully obey these laws and pay the qualifying employees time-and-a-half during overtime, sometimes, either intentionally or by mistake, employers subvert these laws. One of the most common ways that employers attempt to get around paying overtime is through the use of compensatory or "comp" time instead of overtime.

This practice involves employers allowing a worker to take paid hours off in the future based on the amount of overtime hours worked. Most commonly these hours off will be either equal to the amount of overtime, or an hour and a half off for each hour of overtime.

Who Is Entitled to Overtime?

The first step in determining whether an employer is violating wage and hour laws related to overtime is to find out if the law mandates overtime for the employee in question. The first place to look is in the FLSA, which governs overtime requirements on a federal level. The FLSA qualifies all hourly employees for overtime pay, unless they fall into a list of exemptions. The Department of Labor provides a full list of exempt employees. Some of the most commonly applicable exemptions are:

  • - Sales employees working on commission;
  • - Computer professionals making at least $23.67 an hour;
  • - Drivers, loaders, and mechanics employed by motor carriers;
  • - Salesmen, partsmen, and mechanics who work for automobile dealerships; and
  • - Executive, administrative, and professional employees who are paid on a salaried basis.

Illinois’ wage and hour law also contains a list of exemptions, though these largely overlap with the FLSA’s list. For an employee to be exempt from overtime requirements, their occupation would need to be exempted from both the FLSA and the Illinois overtime law.

Is Comp Time Legal?

If a private sector employee falls under the ambit of overtime laws, then paying them with compensatory time instead of an overtime rate violates overtime laws. The purpose of those laws is to provide employees a premium for working overtime, which comp time circumvents. Importantly, this rationale does not apply to all rearrangements of schedules. The overtime laws focus on a weekly time scale, meaning that working more than eight hours in a day does not qualify a person for overtime, and an employer is allowed to shift time within the week to keep an employee below the 40 hour threshold. It is only the banking of paid time off in lieu of an overtime premium that violates the law.

If you believe you have been the victim of an overtime violation like comp time, reach out to a Barrington employment lawyer today. Our team handles cases in many northwest suburbs, including Schaumburg, Rolling Meadows, and Palatine.

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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