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Sexual Harassment Under Federal Law

Web Admin - Friday, December 18, 2015

sexual harassment under federal law, Crystal Lake Employment Law AttorneyOne 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.

    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.




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


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.

Eligibility

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.

Illinois Supreme Court to Consider Negligent Credentialing Case

Web Admin - Monday, February 16, 2015

Illinois Negligent Credentialing, medical malpractice lawyerThe relationship between doctors and hospitals is a complex one. Most people assume that the doctors work for or are partners in the hospital. While some hospitals choose to employ their doctors, it is much more common for the doctors to be independent contractors. The hospitals give the doctors the right to admit patients to the hospital and use their facilities, a decision known as “credentialing.”

Yet, hospitals cannot simply give privileges to whomever they want. The law imposes a duty on hospitals to exercise reasonable care in managing their facilities in order to protect patients. Failure to do so can see the hospital held liable for negligent credentialing.

What Is Negligent Credentialing?

Negligent credentialing occurs when a hospital allows a physician to use their facilities despite that physician’s lack of qualifications. Illinois law requires a plaintiff to prove three things in order to prevail on a negligent credentialing claim:

  1. 1. The hospital breached its duty of care by improperly granting staff privileges to an unqualified physician;
  2. 2. The physician breached the medical standard of care by providing medically negligent treatment in conjunction with their negligently awarded privileges; and
  3. 3. The awarding of the privileges was the proximate cause of the plaintiff’s injuries, meaning that the direct cause of the injuries was the fact that the hospital negligently granted staff privileges to the doctor.

One of the difficulties of winning on a negligent credentialing claim is proving that first element. This requires evidence of what the hospital knew when they credentialed the physician and how thorough their procedures were. The Illinois Supreme Court recently took a case to determine whether plaintiffs in a lawsuit may have access to those records, Klaine v. Southern Hospital Services.

Klaine v. Southern Illinois Hospital Services

The issue in Klaine arises from a colon surgery gone wrong. The plaintiff wanted to pursue a negligent credentialing claim against the hospital, and as part of discovery process the plaintiff requested information about the surgeon’s credentialing process, such as his work history, prior insurance claims against him, and recommendations about his credentialing by the hospital staff. The hospital resisted, citing an Illinois law requiring that a physician’s application for staff privileges be kept “confidential.” The appeals court decided that there was a difference between general confidentiality rules and “privilege,” the special, heightened form of confidentiality that protects things from disclosure during a lawsuit. The Supreme Court will now take the case on to determine if the appeals court was correct in that determination.

The landscape of medical malpractice law is constantly changing. If you have been injured by a physician’s negligence and want to learn more about your options, contact a Crystal Lake medical malpractice attorney at Drost, Gilbert, Andrew & Apicella, LLC today. Our firm helps injured patients all across the northwest suburbs, including in towns like Inverness, Palatine, and Schaumburg.

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.


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