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Illinois Law |
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Illinois Employment Law: Management
Employment Law: Management
The Employment Relationship
Whether a worker is an independent contractor or an employee is based on the work performed, not the worker's title. The more control an employer has over a worker, the more likely it is the worker is an employee. On the other hand, the more a worker acts like an independent business enterprise, the more likely the worker is an independent contractor. In some cases, the status is clear: a worker who arrives at a set time every day, is trained by the employer, uses the boss's tools or equipment, and is paid by the hour, week, or month, most likely is an employee. Someone who works for more than one company at a time, sets his or her own hours, and realizes a profit or risks a loss probably is an independent contractor. An employer could be subject to fines if the Internal Revenue Service, the Illinois Department of Labor, the Illinois Department of Revenue, or the Illinois Department of Employment Security finds a worker has been an employee when the employer treated him or her as an independent contractor. An employer who is unsure about a worker's status should ask a federal or state agency for an opinion based on the agency's guidelines. Guidelines vary from agency to agency, and one agency may classify someone as an employee even though another considers the same worker an independent contractor.
The implications of the at will relationship are far-reaching. Unless there is an agreement to the contrary, an employer may discharge an employee at any time for any legal reason. As long as an employee is not fired for an illegal reason--such as racial or gender discrimination--an employer does not need a good reason to fire someone. Even a silly reason is enough. It also means that an employee may resign at any time, for any reason, with or without giving notice. The employee is free to leave for any reason at all, even if by doing so he or she greatly inconveniences the employer.
Government Administered Benefits
An applicant will not receive benefits if the applicant:
In Illinois the workers' compensation program is administered by the Illinois Industrial Commission. The benefits available to workers include death benefits, permanent or temporary total disability, permanent or temporary partial disability, and medical and related expenses. The benefit amounts are determined by state guidelines and can be as high as two-thirds of a worker's salary at the time of the injury. Any insurance broker should be able to help a business obtain workers' compensation insurance. An employer also may seek help by contacting the Illinois Industrial Commission. The cost of premiums for compensation insurance is determined by factors such as the number of employees a business has, how safe the record of the workplace proves to be, and how much employees are paid. Generally, the greater the payroll or the higher the risk, the higher the premium. However, an employer may be able to lower premiums by establishing programs to provide for a safer workplace and by working with injured employees to minimize lost work time. Employers are required to post notices in workplaces informing workers of their rights to workers' compensation. If an employee is injured, the employer must report the injury immediately to the insurance carrier. A "First Report of Injury" form must be sent out as soon as possible, but it does not mean that the employer is admitting that the injury is covered by workers' compensation or that the injury even occurred. It is illegal for an employer to refuse to hire an individual because he or she has a disabling condition from a prior injury. However, if an employee suffers an injury that is made greater because of a pre-existing condition at the time of hiring, the employer's liability is limited. The purpose of this law is to encourage employers to hire people who may have disabilities resulting from a previous injury.
Civil Rights in the Workplace
People frequently refer to "Title VII" rights when they are talking about a particular section of the Civil Rights Act of 1964. Title VII prohibits discrimination in a wide number of employment areas including advertisements for jobs, apprenticeship programs, benefits, firing, hiring, layoffs, promotions, recalls, recruitment, testing, training and transfers. Title VII also prohibits retaliation against a person who files a charge of discrimination, participates in an investigation of discrimination, or opposes an unlawful employment practice. Under certain extremely limited circumstances employers are allowed to base their employment decisions or practices on a person's marital status, race, sex, etc., if the employer can demonstrate a truly legitimate need. For example, it is legal to hire only women to be attendants in women's locker rooms. Religious institutions may refuse to hire individuals based on their religious beliefs, but only for positions that are directly related to the performance of religious duties; they generally are not allowed to discriminate when hiring individuals for secular tasks such as secretarial or janitorial work. Certain employers, such as police departments, may base some employment decisions on applicants' physical abilities. Other types of hiring criteria are allowed if the criteria measure skills that are truly essential for an applicant to have in order to perform a particular job, and if they are not applied in a selective or discriminatory way. For example, an employer may require applicants for administrative jobs to pass typing or computer skills examinations. A person who feels that he or she has been unfairly discriminated against or harassed in the workplace may file a complaint with the Illinois Department of Human Rights or the federal Equal Employment Opportunity Commission (EEOC). The Illinois Department of Human Rights enforces the Illinois Human Rights Act, and the EEOC enforces the federal civil rights acts that apply to the workplace. When a person files a complaint with one agency, that agency cross-files with the other agency. Both agencies are required to notify the employer of the charge of discrimination, and the employer is given the opportunity to present information as part of any investigation.
The ADA requires employers to make "reasonable accommodations" for applicants or employees with disabilities. The employer must do whatever is reasonable to accommodate a person's disability, including modifying work schedules, providing special training, changing the work environment, buying or modifying special equipment, or reassigning to another position an employee who no longer is able to do the "essential duties" of a job. A reasonable accommodation is one that does not place an undue burden on the employer. Using pre-employment tests that identify and exclude applicants with disabilities is permissible only if the tests are unequivocally job-related. The ADA only protects from discrimination people with permanent conditions that limit a major life activity. Thus, the ADA does not cover an employee who has a sprained ankle that is expected to heal fully, even though that employee is disabled for a period of time. A person with a permanent disabling condition that is controlled by drugs, physical therapy, or by some other treatment is covered by the ADA, such as an epileptic whose seizures are controlled by medication. The ADA also prohibits discriminating against individuals with AIDS or HIV, or people who have completed or are still participating in drug rehabilitation programs. However, an applicant or employee currently using illegal drugs is not protected by the ADA. The ADA is administered by the EEOC. Discrimination against persons with disabilities also is prohibited by the Illinois Human Rights Act.
Determining what kind of behavior constitutes sexual harassment may depend on the circumstances. However, some general descriptions of sexual harassment can be made. A single, or occasional, sexual joke or sexual comment is not sexual harassment unless the comment unequivocally offers workplace advancement in return for sexual favors. Unwanted touching of someone else's body is sexual harassment. Someone who repeatedly tells lewd or obscene jokes that make other employees uncomfortable may be guilty of sexual harassment, especially if the person has been told that he or she makes the workplace uncomfortable. A case for sexual harassment in this example would be weakened if the person claiming harassment participates in the joke-telling. In addition to civil laws designed to prohibit workplace sexual harassment, criminal laws provide remedies against the most serious forms of unwanted sexual contact. Anyone fired or forced to leave a job because of sexual harassment may be entitled to receive unemployment insurance benefits while searching for a new job.
Generally, an employer must treat pregnant women the same as other workers who cannot perform their jobs for short periods of time. Thus, if an employer allows employees to take leave for a broken leg or short-term illness, the employer must allow pregnant women to take leave under the same terms and conditions. Employers also are required to transfer a pregnant employee to a less hazardous or strenuous job during the pregnancy, if the employer makes such provisions for other workers with temporary disabilities. Pregnancy leave is also protected under the Family and Medical Leave Act (discussed below).
Other Workplace Rights and Responsibilities
Certain salaried workers are exempt from minimum wage standards and overtime regulations. To be exempt, an employee must be in an executive, administrative, or professional position and receive at least $250 each week in salary or fee. The employee must supervise at least two other workers, manage an office or a business operation, be a skilled artistic performer or a teacher, or work in a profession requiring advanced knowledge, such as engineering. Employment laws also regulate child labor. For example, no child under the age of 12 is allowed to work, except for children who are members of farm families and who live and work on farms. Students who are 14 or 15 years old may work only three hours per day during the school year, and only eight hours per day during school vacations. All child workers under the age of 16 must have employment certificates.
Employers must alert employees to their OSHA rights by displaying an "Occupational Safety and Health Protection on the Job" poster. In addition, employers may not charge employees for protective equipment required under OSHA standards. Employers also have certain rights under OSHA. For example, employers may request a variance from an OSHA standard in some situations, may participate in the process of developing or revising standards, or may go before the Occupational Safety and Health Review Board to request that a citation or penalty be reviewed and changed. In addition, under the Act trade secrets or privileged communications are protected.
When the leave is foreseeable, an employee must provide the employer with at least 30 days' notice of the need for the leave. If the leave is not foreseeable, the notice must be given as soon as it is practical. Under most circumstances, an employee may elect or the employer may require the use of any accrued paid leave for periods of unpaid leave under the FMLA. An employer may require medical certification of a serious health condition from the employee and may require periodic reports during the period of leave of the employee's status and intent to return to work. In addition, an employer may require a fitness for duty certification upon return to work in appropriate situations. The employee is not entitled to accrue benefits such as vacation time or sick leave during a leave under the FMLA. Any benefits accrued by the employee at the time of the leave, however, stay with the employee. During the leave, the employer must maintain the health benefits the employee was receiving at the time leave begins, at the same level and in the same manner as if the employee had continued to work. When an employee returns from leave under the FMLA, the employee is entitled to be restored to the same job the employee left when the leave began. If the same job is not available, the employer must place the employee in an equivalent job with equivalent pay, benefits, duties, and responsibilities. Under the Act, employers are prohibited from discriminating against or interfering with employees who take FMLA leaves.
When a court must determine whether an employee's right to privacy was violated, it looks to whether the employee's expectation of privacy in a particular situation was reasonable. For example, the expectation of privacy is more reasonable for items in a locked desk drawer than for items left out on a desk. Similarly, it is more reasonable for an employee to expect privacy during a personal phone call made on a pay phone than for a work-related call on the employer's phone. The reasonable expectation standard is not a very strong guarantor of employee privacy. An employer can expand his or her right to search or monitor simply by giving notice to employees. Once an employee receives notice that the employer reserves the right to monitor calls, search offices, read electronic mail, or film the workplace, there is very little reasonable expectation of privacy. In addition to surveillance and search activities, areas in which the right to privacy is an issue include lie detector tests, smoking in the workplace, free speech, dress and personal appearance, and disclosure of employee records.
Another type of restrictive covenant prevents an employee from using trade secrets and other confidential or privileged information learned on the job after termination. Factors in the enforceability of confidentiality agreements include the ability of the former employer to prove that the information truly is confidential, the precautions that were taken to guard the information, and the reasonableness of the time and geographic limitations imposed.
TerminationRecognizing whether an employee was hired at will is critical to proceeding properly with termination. As stated earlier, if a worker has been employed at will, he or she may be discharged at any time for any reason other than an illegal one. If the employment relationship is not at will, such as when an employer has promised to employ the worker for a specific period of time, termination must be "for cause." Causes that justify job termination include habitual lateness or absence, theft of the company's or a co-worker's property, and falsifying records. When a written employment contract exists, it may include requirements that relate to termination. A common requirement is that an employee be notified at least 30 days in advance of the termination. If an employee belongs to a union, the negotiated contract governs the process for involuntary termination. Rights and protections given to employees through an employee manual may be enforceable against employers in post-termination lawsuits as "implied contracts." For example, some courts have found that company retirement, sick leave, and fringe-benefits plans described in employee manuals were enforceable promises of compensation. Oral promises made at the hiring interview also may be recognized as implied contracts. As stated earlier, fired employees usually are eligible for unemployment benefits. Because the unemployment tax for some businesses is based on their experience with unemployment claims, it can be important to know how and when to contest claims. Unemployment claims may have ramifications for any discharge-related lawsuits a former employee may file. For example, if a company chooses not to oppose a former employee's claim for unemployment benefits, the company could be found to have waived a legitimate reason for the firing or to be tacitly admitting wrongdoing. A former employee who wins an unemployment case may find it easier to file a lawsuit for wrongful discharge.
Discussing a decision to terminate or criticizing a fired employee in front of non-essential third parties are actions that can increase an employer's vulnerability to defamation charges. Successful lawsuits have been based on statements in discharge letters if it was not clear that the letters went to proper parties only. Generally, statements made in employment settings are said to be absolutely privileged. In practice, such statements have a qualified privilege, because the privilege can be overcome with proof that the statements were false and said with malice. Truth is an absolute defense in any defamation lawsuit. An Illinois employer who terminates an employee, therefore, simply should provide the truthful reason for termination. Similarly, truthful statements about the nature of the termination or the former employee's performance made to certain third parties--such as clients who inquire about the change in personnel, or workers at a placement agency--generally are qualifiedly or conditionally privileged.
ResourcesIllinois Department of Human Rights, 222 South College, #101, Springfield, IL 62704, phone: (217) 785-5100, TDD: (217) 785-5125; 100 West Randolph Street, #10-100, Chicago, IL 60601, phone: (312) 814-6201, TDD: (312) 263-1579. Call for information or to order the free pamphlet, Illinois Law Prohibits Sexual Harassment. Illinois Department of Labor, State of Illinois Building, 160 North LaSalle Street, #C1300, Chicago, IL 60601-3150, phone: (312) 793-2800, toll-free: 1-800-654-4620; 1 Old State Capitol Plaza West, #300, Springfield, IL 62701; 2209 Main Street West, Marion, IL 62959. For information on wages, hours and overtime or occupational safety and health, and to order the free poster, Notice to Employers and Employees. Illinois Department of Revenue, 101 Jefferson West, Springfield, IL 62708, phone: (217) 785-7100; State of Illinois Center, #7-100, 100 West Randolph Street, Chicago, IL 60601, toll-free phone: 1-800-732-8866. Illinois Department of Veterans Affairs, 833 South Spring Street, P.O. Box 19432, Springfield, IL 62794-9432, phone: (217) 782-6641; 100 West Randolph Street, Suite #4-650 Chicago, IL 60601-3219, phone: (312) 814-2460. Illinois Employment Security Department, 401 South State Street, Sixth Floor, Chicago, IL 60605, phone: (312) 793-5280, TTY: 1-800-662-3943. Contact this department for information, forms, and to order the free publications, Summary of Services and Guide to the Illinois Unemployment Insurance Act. Illinois Human Rights Commission, 100 West Randolph Street, #5-100, Chicago, IL 60601, phone: (312) 814-6269; 404 William G. Stratton Office Building, Springfield, IL 62706, phone: (217) 785-4350. Contact this commission for public hearing or appeal rights information. Illinois Industrial Commission, 100 West Randolph Street, Eighth Floor, Room 200, Chicago, IL 60601, phone: (312) 814-6611. This commission has information on workers' compensation. Internal Revenue Service, 1111 Constitution Avenue NW, Washington, D.C. 20224, toll-free phone: 1-800-829-3676. National Organization on Disability (NOD), 910 16th Street NW, #600, Washington, D.C. 20006, phone: (202) 293-5960, TDD: (202) 293-5968. Secretary of State, 474 Howlett Building, Springfield, IL 62756, phone: (217) 782-5763. Call for the free pamphlet, Sexual Harassment Is Against the Law: An Explanation of the Secretary of State's Office Policy to Prevent Sexual Harassment. To receive the free pamphlets, Family & Medical Leave: Know Your Rights; Pregnancy Discrimination: Know Your Rights; and Sexual Harassment: Know Your Rights, contact the United States Department of Labor, Women's Bureau Region IX, 71 Stevenson Street, #927, San Francisco, CA 94105, phone: (415) 975-4750. United States Equal Employment Opportunity Commission, Chicago District Office, 500 West Madison Street, Suite 2800, Chicago, IL 60605, phone: (312) 353-2713; Region IV Disability and Business Technical Assistance Center, phone: (404) 888-0022, TDD: (404) 888-9098; 1801 L Street NW, Washington, D.C. 20507, phone: (202) 663-4900, TDD: 1-800-872-3302. For information or to order the free pamphlets, Information for the Private Sector and State and Local Governments; The Americans with Disabilities Act: Questions and Answers; and The Americans with Disabilities Act: Your Responsibilities as an Employer. |