Severance Agreements

Web Admin - Tuesday, January 12, 2016

severance agreements, Illinois employment law attorneyIndividuals who are facing termination from employment may be offered a severance package. The terms of this package are contained within a severance agreement. Employees facing termination should pay careful attention to the terms placed within the agreement and be sure that they understand what the terms mean before signing. 

Provisions in Severance Agreements

Severance agreements are important to employers and employees. For employers, they provide protection against the employee filing a lawsuit against the employer in the future. For employees, the agreement describes what payment and benefits they will receive. Additionally, provisions can be included to protect against what will be said to future prospective employers about the reasons for the termination. The following are several of the most common issues that are addressed in severance agreements: 

- Severance Pay: Payment for the termination is usually offered in some term of weeks (for example, five weeks of pay). It is common for the offer to be based on the length of employment, such as one week of pay for each year of employment.

- Vacation Pay: Employees are entitled to payment for earned, but unused vacation time.

- Non-compete Agreement: If the employer and employee entered into a non-compete agreement, the employer should provide a copy of it to the employee and remind him or her of the terms and conditions. Additionally, changes to the non-compete can be made during severance negotiations and placed in the agreement.

- Returning Equipment: A discussion of what happens to any property of the employer (such as a company phone, laptop, or keycards) that is in the possession of the employee should be included in the agreement. This provision should explain how and by what date the property must be returned.

- Future Jobs: For the terminated employee, it is likely that he or she will be searching for a new job. In that case, it is important for the employee and his or her former employer to agree on how the employer will communicate with prospective employers. If the employee and employer give different reasons for the termination, it can be detrimental in the search for a new job. Additionally, the parties may enter into a non-disparagement clause, which states that neither of them will make disparaging remarks about the other to third parties. A non-disparagement clause should specifically define what cannot be said.

- Claims Waived: This is often the most important provision for employers. Under this provision, the employee relinquishes any right to file a lawsuit against the employer. It should define all of the types of claims and lawsuits that are barred.

- Employees Over 40 Years Old: These types of employees are protected by the Older Workers Benefit Protection Act (OWBPA). Workers 40 years of age and older must be given 21 days to review the severance agreement prior to signing it. Further, they have seven days after signing the agreement to change their mind and revoke it. 

Helping Employees 

If you are faced with a severance agreement negotiation, you should contact a skilled Illinois employment law attorney as soon as possible. Our team can help you understand the provisions in severance agreements, which can help you secure benefits and protect your rights. We proudly represent individuals the communities of Crystal Lake, Schaumburg, Palatine, Des Plaines, Rolling Meadows, Buffalo Grove, Barrington, Arlington Heights, Inverness, and Deer Park. We look forward to hearing from you. 

      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.

Source: http://www.eeoc.gov/eeoc/history/35th/thelaw/owbpa.html

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.

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.

Retaliatory Discharge and Whistleblower Claims in Illinois

Web Admin - Thursday, January 30, 2014

illinois whistleblower employment lawyerIllinois law creates something called an “at-will” employment relationship between an employee and an employer. Ordinarily, this means that an employer may fire an employee for any reason or even no reason at all. But, Illinois law does create an exception in cases of retaliatory discharge.

A retaliatory discharge occurs when an employer fires an employee for taking an action that is protected by either a statute or general public policy. One of the most common actions that gives rise to a retaliatory discharge claim is an employer's firing of an employee after “whistleblowing.” Whistleblowing means that an employee reported suspected illegal conduct by the employer to the government, and it is protected by 740 ILCS 174.

Illinois Whistleblower Protection

Illinois law provides statutory protection to whistleblowers, so that their employers cannot fire them in retaliation for their reporting. However, the law has a limited set of actions that qualify as whistleblowing for the purposes of legal protection. Employers may not fire their employees for reporting their illegal conduct to a government or law enforcement agency, testifying against them in court, or refusing to perform an illegal act. Furthermore, the information that the employee provides does not actually have to expose any illegal conduct on the part of the employer. Instead, the employee merely needs a reasonable belief that the information involves an illegal act.

The law also contains a few other miscellaneous provisions. It prohibits employers from putting in place policies that that would prevent an employee from disclosing information that they believed involved an illegal act on the part of the employer. Additionally, the law includes a catch-all provision, designed to provide broader protection to whistleblowers. It forbids employers from retaliating against employees for attempting to expose any “public corruption or wrongdoing.”

In addition to forbidding retaliatory discharge, the law also recognizes other types of actions as retaliation. Generally speaking, the law forbids employers to retaliate with “materially adverse employment actions.” While termination is certainly the most common, other things like demotions, pay cuts, transfers and shift changes may qualify under certain circumstances.

In the event that the employee proves that they suffered retaliation, the law provides them with a variety of remedies, including:

  • • Reinstatement; 
  • • Back pay with interest; 
  • • and Compensation for damages from the violation.

If you believe that you suffered a retaliatory discharge for whistleblowing or some other protected act, contact a Chicago employment lawyer today. Call 847-934-6000 to speak to a member of our team. We serve many Northwest Suburban areas including Barrington, Palatine, Schaumburg, and other surrounding communities.

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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