Articles Posted in Chicago Employment Law

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It’s confusing. Not only do employers need to be aware of all the federal, state, county, and city laws that apply to their business, but they also need to keep up when those laws change – which is pretty much constantly. For this post, we’ve compiled some of the most significant changes to employment law that have recently gone into effect.

Sexual Harassment Policies

This is less a change in the law than a change in the culture. The Illinois Human Rights Act of 2013 made sexual harassment in the workplace illegal, and also made it illegal for employers to retaliate against workers who file a sexual harassment claim against them. Nevertheless, most women have long been intimidated into staying quiet about any unwanted advances or sexual violence, and most companies had an unwritten policy of protecting those who committed acts of sexual violence, especially when they held high-level positions.

But 2018 has seen that change in a big way and companies that fail to properly address allegations of sexual misconduct are going to pay the price. More and more women have been empowered to speak up about their experiences and naming their accusers – and the companies who covered it up.

Many of these allegations are not isolated incidents. Instead, victims claim their workplace fostered an environment that encouraged sexually aggressive behavior, and making such claims publicly can hurt their employer’s business and their brand. The result is a heavy cost they’ll have to pay in lost business for months, or even years. So companies would do well to get ahead of any potential problems, not only by updating their workplace conduct policies, but by training staff on appropriate workplace behavior, instituting regular retraining, and making it easy for those who have been attacked to file a claim. Continue reading

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It’s common for employers to screen job candidates for indications of a criminal history before offering to hire them. Many people who have been convicted of a crime are automatically disqualified for jobs, regardless of the crime they committed or how the rest of their history shows they’ve made active strides in amending their mistakes and moving on to become better citizens.

Unfortunately, people of color (primarily African Americans and Latinos) are more frequently incarcerated and charged with crimes (especially violent crimes and those relating to drugs) than their white counterparts, despite representing a significantly smaller portion of the population.

According to a recent civil rights class action lawsuit against Target Corp., the retail giant’s background check on job candidates allegedly resulted in employment discrimination against Latinos and African Americans. The class of plaintiffs included more than 41,000 Latino and African-American candidates who were denied employment at Target as a result of a criminal background screening that Target used between May 2008 and December 2016.

Target has since reached a settlement with the class of plaintiffs for $3.7 million, although it’s not clear how many of the plaintiffs will be receiving a piece of that pie.

As part of the settlement agreement, Target has also agreed to provide priority hiring rights to Latinos and African Americans who applied for jobs at Target starting May 11, 2006, but was denied based on their criminal background checks. For the plaintiffs who can’t benefit from that particular provision because they’ve retired or they have a military, medical, or family obligations, they will be eligible to receive up to $1,000 in compensation. Continue reading

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Once again, our economy is changing. Just like the industrial revolution brought new opportunities for advancement, the digital economy is also bringing with it new ways for people earn a living – either full time or on the side. While this can bring tremendous opportunity for enterprising workers, companies have taken advantage of the new “gig economy” by classifying their employees as independent contractors, even if they don’t qualify.

While working as an independent contract can come with perks like being able to make your own hours, there are downsides, such as paying your own Social Security and self-employment tax. At the same time, companies using independent contractors don’t have to pay Social Security or employment tax on their independent contractors, although they do sacrifice a certain amount of control over the workers as a result, and they usually pay a little more by the hour, day or project.

But lately it seems like companies want to have their cake and eat it, too. Lawsuit after lawsuit has been filed against major companies for allegedly misclassifying their workers as independent contractors, even when they allegedly don’t meet all the requirements. Such a situation puts workers at a significant disadvantage when they have to bear all the financial burdens of being an independent contractor, without any of the perks.

The California Supreme Court has recently agreed to hear a case involving such allegations against Dynamex Operations. In doing so, the court may decide to reconsider California’s previous definition of “employee” and the Court may decide on a new test to determine whether a worker is an employee or an independent contractor. Since 1989, courts have been using the Borello test, but that might not be enough to handle the needs of workers almost 30 years later. Continue reading

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Of the low paid, hourly employees who are susceptible to getting ripped off by their employers through underpayment and refusal to pay for work performed, delivery drivers are one of the most vulnerable groups. They are tipped employees, which means employers can pay them the reduced minimum wage of $2.13 per hour as long as the combination of their tips and wages equals at least the regular minimum wage. If their tips and wages do not add up to the regular minimum wage, the employer is required to make up the difference with additional wages.

Delivery drivers have an especially hard time making ends meet because, in addition to living expenses, they also generally have to supply their own vehicle in order to make the deliveries. That means car insurance, gas, and the costs of maintaining the vehicle, all of which can add up quickly. As a result, several companies who offer delivery services have been hit with allegations of wage and hour violations by their delivery drivers who claim that, when the costs of maintaining a vehicle to perform the deliveries are taken into account, they earn less than the legally required minimum wage.

One such lawsuit has recently been filed against Domino’s Pizza and two of its Illinois franchisees by a class of current and former delivery drivers who claim they are being paid less than minimum wage. The lead plaintiff in the wage and hour lawsuit, Samantha Young, used to deliver pizzas for a Domino’s location in Willowbrook, and she is seeking to represent a class of delivery drivers who currently work, or have worked, at two multi-location Domino’s franchisees in Illinois: Rolling in the Dough and JWG. According to claims in Young’s complaint, the combination of the delivery drivers’ required expenses for their vehicles, uniforms, and the untipped work they perform in store, all added up until Young and her fellow delivery drivers were allegedly being paid less than minimum wage. Continue reading

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10 Most Common Wage Violations in Illinois

1) Not Paying Overtime

The federal Fair Labor Standards Act (FLSA) requires employers to pay all their non-exempt, hourly workers at least one and one-half times their normal hourly rate for all time they spend working after eight hours a day or forty hours a week. But employers continue to find ways to avoid paying overtime – from refusing to log the overtime hours to misclassifying their hourly employees as exempt from overtime, even if they don’t meet the requirements.

2) Making Improper Deductions from Employees’ Pay

Employers can make certain deductions from their employees’ pay without the employees’ permission, such as taxes and social security. Anything else requires express, written permission from the employee at the time the deduction is made, but many companies take advantage of this and make illegal deductions from their workers’ pay without their consent, thereby making their employees (especially their low-income employees) pay for some of the company’s overhead costs.

3) Miscalculating Overtime Rate

Most companies just multiply their employees’ normal hourly rate by 1.5, multiply that by however many overtime hours they worked, and leave it that. In many cases, that’s probably fine, but if the employee earned any tips, bonuses, commissions, or any other income during the overtime pay period, that income also needs to be included when calculating their overtime rate, but many employers neglect to do so.

4) Improper Use of Tip Pooling

Because employees who earn tips can be paid a lower minimum wage ($4.95/hr in Illinois compared to $8.25/hr) many restaurants look for ways to justify paying the lower minimum wage, even to employees who don’t earn tips. Many of them do this by making tipped employees, such as servers, share their tips with non-tipped employees, such as cooks and dishwashers.

5) Manipulating Timecards to Make It Look Like Employees Worked Less Time

Some employers round out an employee’s time when they punch in or out, often resulting in the employee working a few minutes more or less than the time for which they get paid. It may not seem like much, but those few minutes add up over time. Other companies simply refuse to include all the hours their employees spent working, especially overtime, so they can pay them less than they earned.

6) Misclassifying Employees as Independent Contractors

Companies don’t have to pay taxes, social security, or benefits for the independent contractors they hire, but because those expenses fall on the worker, there are specific requirements a worker needs to meet in order to qualify as an independent contractor. Far too many companies have been misclassifying their employees as independent contractors and placing the burden of these extra expenses on low-earning workers who can’t afford them. Continue reading

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Under the federal Fair Labor Standards Act (FLSA), all hourly, non-exempt employees are entitled to one and one-half times their normal hourly rate for all the overtime they spend working. It sounds simple enough, and for most workers it is, but employers need to make sure they’re including all the compensation earned by workers when calculating their overtime rate.

An overtime class action lawsuit against the U.S. division of Weatherford PLC alleges, among other things, that the oil company failed to properly calculate employees’ overtime rates. According to the wage and hour lawsuit, the company did not take into account certain bonuses (called “wellness bonuses”) that employees had earned when calculating the premium overtime compensation they should be paid when working more than eight hours a day or forty hours a week.

The class action lawsuit, which was filed in California in 2014, also alleges that Weatherford illegally denied workers compensation for the meal breaks they worked through.

Although the FLSA does not require employers to provide their workers with breaks throughout the workday, some state labor laws do, including California. Under California labor law, all hourly, nonexempt workers are entitled to one, paid, uninterrupted rest break of at least ten minutes for every four hours they spend working. For every five hours worked, employees are entitled to one, unpaid, uninterrupted meal break lasting at least half an hour. For every day an employee does not take one of these breaks, for any reason, that employee is entitled to one hour’s worth of pay, in addition to all other wages, bonuses, tips, etc. earned that day. Continue reading

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Although it seems like large companies are never short on cash, it’s usually more likely that, the larger the company, the more pressure it’s under to watch its bottom line. Too often, making that bottom line includes cheating employees out of their hard-earned wages. Unfortunately, it’s also true that, the larger the company, the more ways they have of avoiding the law.

According to a recent class action wage and hour lawsuit against Rotonda Golf Partners and Rotonda Golf Partners II LLC, the two companies, which are both under the same ownership, allegedly took advantage of their relationship to allegedly manipulate employees’ hours and wages. The lawsuit alleges the companies illegally exploited their relationship to avoid paying employees the proper overtime compensation of one and one-half times their normal hourly rate.

The federal Fair Labor Standards Act (FLSA) defines overtime as any time spent working after eight hours a day or forty hours a week. It also requires employers to pay all their hourly, non-exempt workers 50% more for their overtime hours than they pay them for all the straight time they spend working. But these regulations only apply to hours employees spend working for one employer. Workers who hold down multiple jobs are not owed overtime compensation until they have worked more than eight hours a day or forty hours in a week for one employer. Continue reading

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In the United States, federal laws are meant to apply to everyone living and working in the country. If a federal law conflicts with a state or local law, it may not always be immediately clear which one takes precedence. Some federal laws explicitly state that they can be preempted by state or local laws, but when the answer isn’t clearly written in the law, it can leave some people guessing.

An ordinance recently passed in Miami-Dad County in Florida raised the minimum wage for employees of contractors servicing Miami-Dade County or using airports owned by the county. The ordinance includes employees of third-party firms who provide janitors, security guards and clerical workers.

Amerijet International Inc. sued the county, alleging the ordinance violated the 1975 Airline Deregulation Act as well as the 1994 Federal Aviation Administration Authorization Act. Amerijet also argued that the Commerce Clause and Equal Protection Clause of the U.S. Constitution should prevent it from having to pay increased rates to baggage handlers who also handle baggage for other airlines at Miami International Airport.

The court ruled in favor of the county, so Amerijet appealed the decision up to the Eleventh Circuit Court, which upheld the lower court’s ruling. Amerijet then appealed to the Supreme Court, which refused to hear arguments for the case and upheld the ruling of the circuit court. Continue reading

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Companies are always looking for ways to cut costs and Darden, the corporate giant that owns popular restaurant chains like Olive Garden and Longhorn Steakhouse, has found a way to save itself approximately $5 million per year, according to a recent report conducted by Restaurant Opportunities Center (ROC) United, a worker organization. Unfortunately, the report alleges these savings for the company come from stiffing their workers, approximately half of whom are paid via debit card.

Debit cards have become a popular way to pay employees, especially those who earn minimum wage. It saves the employer millions and makes more millions for the company distributing the debit cards, all while milking more from the workers who earn so little to begin with that they often qualify for public assistance, even though they work full time.

Employers like Darden, who hire hundreds of thousands of low-earning employees, claim the debit card payment style is beneficial to both workers and employers because it saves workers from bank fees when they cash their paychecks. But the debit cards come with their own fees. According to the ROC United report, the debit cards used by Darden charged users $1.75 every time they withdrew money from an ATM that was out of their network, 99 cents when they used the card to pay utility bills, and 75 cents just to check the card’s balance. A worker who loses their debit card has to pay $10 to get a new one. Continue reading