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.

How Courts Determine Damages

Web Admin - Friday, February 27, 2015

personal injury damages, Schaumburg personal injury lawyerThe ultimate goal of personal injury law is to make injured victims whole again. In theory, the law would like to allow people who suffer injuries to collect full compensation for all of the physical, economic, and emotional harms that an accident imposes on them. Of course, there are practical difficulties with doing this, such as accurately measuring emotional harms. Still, the fact that full compensation is the goal of the law is helpful for people's understanding of what damages are available to them in personal injury lawsuits.

What Damages Are Available

The law makes a wide variety of damages available to injured parties. Some of the most straightforward ones to understand are special compensatory damages. These are damages related to specific, easily calculated harms that a person suffered as a result of an accident. For instance, in a case arising out of a car accident, a person could receive special compensatory damages from the person who caused the accident to cover their medical bills and the repair bills for their car. The damages can also work based on prospective harms. For instance, if a victim can prove that their injuries prevented them from returning to work or lowered their ability to earn money, then they can also recover for those sorts of losses.

Courts can also award victims general compensatory damages. Rather than being tied to specific, calculable harms, general compensatory damages are supposed to compensate victims for the emotional harms that they suffer. Theoretically, these damages should be related to a person's pain and suffering, but as a practical matter they tend to be related to the special compensatory damages that a jury awards.

Additionally, courts have the option of awarding punitive damages. These damages are a special class of damages that are only given out rarely. Rather than the other types of damages, which focus on ensuring that victims are paid back for the harm they suffered, punitive damages exist to punish the defendant. The idea is that courts may impose these extra damages to punish defendants for particularly heinous conduct.

Comparative Negligence

Once the court calculates the full amount of the damages, there is another step. The court must determine whether the injured victim was at all responsible for the harms that they suffered. Illinois law reduces the amount of money a victim can recover by the amount of responsibility that they bear for the accident. For instance, if a pedestrian is crossing against a light and gets struck by a drunk driver, the court may find them responsible for some amount of their own injuries. Suppose the court decides that the pedestrian was responsible for 10 percent of their harm; here they can only recover 90 percent of their total damages.

Traffic accidents can lead to life changing injuries. Fortunately, the law gives people options for how to handle these situations. If you were injured in a traffic accident and want to learn more about your rights, contact an Illinois personal injury attorney today. Our firm represents victims in many northwest suburban towns, including Schaumburg, Inverness, 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.

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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