Employment Discrimination in Illinois

Web Admin - Thursday, April 30, 2015

employment discrimination in Illinois, Rolling Meadows employment lawyerEmployees are protected from employment discrimination through federal and state laws. While the federal protections are fairly extensive, Illinois state law provides even larger groups of people with protection. Understanding these laws will enable individuals to recognize if they have been discriminated against in relation to employment.

Protected Classes

Through numerous different laws, the federal government prohibits discrimination based on:

  1. 1. Race/Color;

  2. 2. National origin;

  3. 3. Religion;

  4. 4. Sex;

  5. 5. Disability;

  6. 6. Age (for people over 40);

  7. 7. Citizenship status; and

  8. 8. Genetic information

The federal laws provide the minimum protections afforded to individuals. Through its own laws, Illinois provides protection from discrimination based on:

  1. 1. Marital status;

  2. 2. Sexual orientation;

  3. 3. Military status;

  4. 4. Unfavorable military discharge;

  5. 5. Gender identity;

  6. 6. Arrest record; and

  7. 7. Lack of permanent mailing address or using the address of a shelter or social service provider.

The Illinois Department of Human Rights (Department) investigates employment discrimination filed against private employers, state or local government, unions, and employment agencies. A charge of employment discrimination must be filed within 180 days of the alleged discrimination in order to utilize the Department to investigate. Alternatively, an individual can file a claim with the U.S. Equal Employment Opportunity Commission.

The Department will only investigate claims against companies with 15 or more employees, unless:

  1. 1. The charge alleges sexual harassment, retaliation, or physical or mental disability discrimination – in these circumstances only one employee subjects the employer to the anti-discrimination law;

  2. 2. The employer is a public contractor, which is defined as an employer who does business with Illinois or a unit of local government; or

  3. 3. The employer is a unit of state government.

Under the Illinois Human Rights Act, it is a civil rights violation for an “employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination or citizenship status.” It is also unlawful for an employer to impose a restriction that has the effect of prohibiting an employee from using a language to communicate in situations unrelated to the employee’s duties.

Illinois law protects against discrimination based on pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth. Further, the employer must provide reasonable accommodations when requested by an employee for issues related to pregnancy or childbirth unless the employer can demonstrate that providing such accommodations would impose an undue hardship on the ordinary course of the employer’s business.

Can We Help You?

Employees in Illinois are provided with a great deal of protection from employment discrimination by both federal and state law. If you believe you have been discriminated against in relation to employment, you should speak with an experienced Illinois employment law attorney. Drost, Gilbert, Andrew & Apicella, LLC serves clients throughout the northwest suburbs, including Rolling Meadows, Barrington, 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.

New Law Mandates Reasonable Accommodations for Pregnant Women

Web Admin - Thursday, December 11, 2014

pregnant woman wrongful termination, employee rights lawyerDiscrimination against pregnant women in the workforce has long been a concern, and now the Illinois legislature has passed a new law designed to help give women greater protection. The new law modifies the Illinois Human Rights Act, effective starting next year, to more clearly protect pregnant women's rights. The new rights include the right to reasonable accommodation of their pregnancy by their employers, protection from employment discrimination, and protection from forced leave. The law also grants employers some protection from unreasonable demands, such as the ability to refuse accommodations if such accommodations would place an undue hardship on the business.

New Rights for Pregnant Women

The law includes four new rights for “women affected by pregnancy, childbirth, or medical or common conditions related to childbirth.” The most legally complex of these rights is the right to a reasonable accommodation of their pregnancy. These accommodations are changes to the employee’s duties or their workspace that allow the employee to perform the “essential duties” of the position. The law provides some examples of these reasonable accommodations, which may include things like more frequent bathroom breaks, private space for breastfeeding, or a modified work schedule.

The law also provides another set of more concrete rights to pregnant women. For instance, employers may not force accommodations onto a pregnant woman if she does not want them, a provision that is likely designed to protect women from being forced to modify or reduce their work schedules. Similarly, the law forbids an employer from forcing a pregnant woman to take maternity leave if she chooses not to.

Employer's Rights

The law also includes a new set of rights for employers that relate to the issue of reasonable accommodation. The first right is that employers can claim that the accommodation the woman is asking for would place an undue hardship on the company. The law defines undue hardship as “an action that is prohibitively expensive or disruptive.” It also provides four factors for judges to consider when determining whether something is an undue hardship:

  1. 1. The nature and cost of the accommodations;
  2. 2. The financial resources of the facility providing the accommodation and the accommodation's impact on the company's operations;
  3. 3. The resources and size of the employer; and
  4. 4. The type of work the employer does.

This provides a highly individualized test that depends greatly on both the specific employer and the accommodation requested. The law also provides the employer with the right to request medical documentation supporting the need for the accommodation.

If you believe that your rights under this new act are being violated or if you are an employer concerned about your obligations under the new law, contact a Crystal Lake employment law attorney today. Our firm helps many northwest suburban employees and businesses in towns like Rolling Meadows, Crystal Lake, Arlington Heights, Inverness, Deer Park, Palatine, and Barrington.

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.

Remedies for Unpaid Overtime in Illinois

Web Admin - Thursday, February 06, 2014

illinois unpaid overtime employment lawyerAmerican workers are facing a growing problem; their employers are failing to pay them overtime for extra hours that they worked. According to CNN, wage and hour claims have increased 400 percent in the last decade alone. Employers have a variety of tricks they can use to avoid paying employees the money they owe them. For instance, many employers improperly classify their workers as independent contractors, when they should actually be classified as employees.

This allows employers to subvert overtime laws and shift some of their tax burden to the worker. Employers can also avoid paying overtime by instituting improper policies to prevent employees from logging all of their hours. This can include such practices as forcing employees to clock out for lunches through which they work, making employees show up for work and then wait to clock in until later, or forcing workers to work from home without tracking their hours.

Fortunately, workers in Illinois have remedies available to them. Employees can bring suits for unpaid overtime under the federal Fair Labor Standards Act (“FLSA”) and under the Illinois Minimum Wage law. However, employees should know that both laws provide different limits on the amounts that they can recover from their employer.

The Fair Labor Standards Act

The FLSA is a federal law that protects workers from wage violations. If an employee brings a suit under the FLSA to recover overtime, they can receive overtime pay that the employer owes them from the past two years. That time period may increase to three years if the employee can prove that their employer willfully violated the statute.

A willful violation of the statute occurs if the employer “showed reckless disregard for the matter of whether their conduct violated the statute.” Additionally, in the case of such willful violations, the court may award “liquidated damages.” These extra damages can be as high as the initial amount of overtime owed, meaning the employee can receive twice the amount that the employer failed to pay them.

The Illinois Minimum Wage Law

Illinois also has a minimum wage law under which employees can sue in order to recover overtime pay. Employees can recover up to three years of back pay under this law, regardless of whether the employer willfully violated the law. However, suing under the Illinois law would deprive the employee of the opportunity to receive liquidated damages. Instead, the Illinois law provides for employees to receive two percent interest for each month that their employer owed them overtime.

Do you have questions about your employer’s overtime practices, or think you may be eligible for overtime pay that you never received? Reach out to a Rolling Meadows employment lawyer today. Our firm operates in many northwest suburban areas including Barrington, Crystal Lake, 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.

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