DGAA bLAWg

One of the most serious issues that can occur in the workplace is sexual harassment. It is a violation of both state and federal laws and can be committed by and against numerous different individuals. Sexual harassment is considered a civil rights violation.

Defining Sexual Harassment 

Under federal law, sexual harassment is defined as any sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature that is not welcomed. The conduct must be so severe or frequent that it creates a hostile or intimidating workplace. It is important to note that sexual harassment can occur between people of the same or opposite gender. Further, a victim does not need to be the individual being harassed. If an individual is affected by offensive conduct, a sexual harassment claim may be made. 

Specifically, sexual harassment is a violation of Title VII of the Civil Rights Act of 1964, which applies to employers with 15 or more employees. Title VII applies to state and local governments, employment agencies, labor organizations, and the federal government. The Equal Employment Opportunity Commission (EEOC) encourages employers to provide training on sexual harassment and to communicate to employees that it will not be tolerated. Under Illinois law, companies and state agencies must develop policies on sexual harassment. State agencies must post these policies in a prominent and accessible location, as well as distribute them to all employees.

Victims of sexual harassment can file a Charge of Discrimination with the EEOC. The potential remedies may include compensatory and punitive damages, though the damage awards are capped dependent upon the size of the employer. For example, the damage award is capped at $50,000 for employers with 15-100 employees. 

Federal Employees 

Victims of sexual harassment who are federal employees must follow specific procedures when making a claim. Under most circumstances, a federal employee must contact an EEOC counselor of the agency where the harassment occurred within 45 days of the date of the harassment. After the claim has been made, it is addressed either through EEO counseling or alternate dispute resolution (ADR), such as mediation. 

It is important to note that federal employees cannot file a lawsuit until attempting to resolve the matter through the administrative complaint process. However, during the process, there are opportunities to initiate a lawsuit under the following circumstances: 

1. 180 days have passed since the complaint was filed and no decision has been made and no appeal has been filed; 

2.  Within 90 days of the complainant receiving the agency’s decision, as long as no appeal has been filed; 

3. 180 days have passed from the filing of an appeal if no decision has been issued by the EEOC; or 

4. Within 90 days from the date the complainant receives the EEOC’s decision after an appeal. 

If you believe that you have been a victim of sexual harassment, it is important to contact an experienced Illinois employment law attorney as soon as possible. Our firm can help stop unwanted harassment and pursue compensation for damages you have suffered. We represent individuals in Crystal Lake, Schaumburg, Palatine, Des Plaines, Rolling Meadows, Buffalo Grove, Barrington, Arlington Heights, Inverness, and Deer Park.

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.

Sources: 

http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1604.xml

http://www.eeoc.gov/laws/statutes/titlevii.cfm

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2266&ChapterID=64&SeqStart=600000&SeqEnd=1200000

Many 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.

American 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.