Recognizing Sexual Harassment In The Workplace

Every workplace should be free from sexual harassment or discrimination of any kind. All workplaces are required by law to ensure that each and every employee is free from these concerns. Nonetheless, they do happen, and often.

Unfortunately, many people fail to understand that sexual harassment comes in a variety of forms, and identifying it is not always easy.

Here are just a few examples of sexual harassment:

  • Continued requests for dates
  • Unwanted or unwarranted sexual advances
  • Requests for sexual favors
  • Inappropriate touching or attention
  • Conversations about the way you dress or look
  • Discussions about your sex life or sexual preferences
  • Jokes and/or emails with sexual undertones or sexual innuendos
  • Continuous staring at your body
  • Indications that fulfilling sexual requests will help you to move up in the company
  • Threats or implications that failing to accept sexual advances will hurt your career

If anyone has made you feel uncomfortable, made sexual advances, or intimidated you into inappropriate behavior, especially if it interfered with your ability to get your job done, then you are likely a victim of sexual harassment.

Sexual harassment can happen to anybody. Sexual harassment can come from a supervisor, manager, co-worker, or even non-employees like customers or vendors. Even though the majority of sexual harassment claims consists of women victimized by men, we have seen cases of women imposing themselves on men, men harassing men, and women harassing women. These cases can be gender-neutral.

If you feel that you are experiencing sexual harassment in your workplace, it is important to refer to your company’s sexual harassment policy and report the issue as soon as possible to your human resources department or management. Frequently, this will result in the employer remedying the situation. But some employers may not cause the sexual harassment to stop or even take retaliatory action against the employee making the complaint. Retaliation itself is an additional type of discrimination and sometimes the retaliation will result in a greater recovery than the initial harassment.

If your sexual harassment claim has not been adequately addressed by your employer, then contact an employment attorney immediately. Maduff & Maduff specialize in sexual harassment, discrimination, and other workplace issues. Contact us for help with your employment law issue today.

What Does a Trump Administration Mean in Employment Law

On January 20, Donald Trump was inaugurated as the 45th President of the United States. While the new administration’s policies are unclear on a wide range of issues, his comments during the campaign provide some hints on positions he will take with regard to labor and employment law.  At the outset, we can assume that they will not be in line with those of the prior administration.  With this blog, we turn to our proverbial crystal to make some predictions. Here are three:

Overtime

As many employers were preparing for new changes in the salary basis test to take effect on December 1, 2016, a Texas District Court issued a preliminary injunction blocking its implementation. On December 1, 2016, the Obama administration appealed the ruling to the Fifth Circuit Court of Appeals. The Fifth Circuit granted an expedited appeal, but the issue will not be fully briefed until January 31, 2017, and oral arguments will occur thereafter. As a result, it will be the new Department of Labor under the Trump Administration who will take responsibility for it and the decisions around the government’s position.

What We Think Will Happen: All indications suggest Trump would likely not support the current appeal initiated by the Obama administration or the new DOL overtime regulations. Trump has talked against eliminating regulations that harm business’s bottom line. Trump has also suggested that these issues should be handled on the local level. Here in Chicago that process has already started.  As a result, the Department of Labor may simply abandon the appeal altogether.

Employee Paid Leave

Paid leave became an important campaign issue.  Currently there is no Federal Law mandating any paid leave (whether it is sick leave or medical leave). There are a number of cities and states that are making changes to the laws locally, but nothing has yet been put in place on a national level.

Trump campaigned for paid leave. On his website, he lists one of his priorities is to “provide 6 weeks of paid leave to new mothers before returning to work.”

What We Think Will Happen: It is unlikely that a Republican controlled congress will support such a change. The GOP has long opposed any paid leave. Complicating matters — even if the law were passed, it would face significant constitutional challenges because as currently described, it only benefits new mothers and leaves out “non-mothers” that are new parents. As a result it would be subjected to an attack under the Equal Protection Clause.

Non-Compete Agreements

There was a growing swell of support for a national “No” non-compete regulation. The Obama administration was beginning to implement practices that discouraged restrictive covenants and there was talk of establishing a federally mandated rule.

What We Think Will Happen: It is unlikely the Trump Administration will continue to support these efforts. These changes are likely to continue to be controlled by state-law and will vary widely from state to state.

A Final Note

Although Trump tweet at 2:00 in the morning on the most mundane of issues, he still cannot micro-manage the huge federal government. In fact, his cabinet appointments suggest just the opposite. While many of those appointees have been criticized for lack of experience in the field of the departments they are going to manage, none of them lack substantial independent management experience. In fact, at confirmation hearings many of them have taken positions contrary to Trump’s own stated positions. Not only has Trump not tried to rein in his appointees, he has encouraged them to express their own opinions. Therefore, in the long run, we must look at the individual cabinet members to predict future directions of the administration.

For example, the Secretary of Labor designee is Andrew Puzder, CEO for the fast food companies, Carl’s Jr. and Hardee’s, an industry where a substantial component of their costs is minimum wage employees. This industry could be heavily hit by even a modest increase in the minimum wage. Confirmation hearings for Mr. Puzder are scheduled for February 2nd. How he responds to questions from senators, Democrats as well as Republicans, may give us more accurate insight into where employment law and policies will go under his administration than Mr. Trump’s own statements so far.

Please Stay With Us.

As the legal landscape continues to shift with the incoming administration it is important to be in contact with an experienced Employment Lawyer. Please contact us to discuss how we can help you prepare.

Understanding Employer Retaliation

Employees are often hesitant when it comes to calling out their employer for doing something wrong by a complaint to management or Human Resources. Most employees are typically concerned with one thing—retaliation by their employer. That same fear of retaliation comes when an employee reports the employer to a regulator like the EEOC (for discrimination), the Department of Labor (for failure to pay overtime) and numerous other agencies. Employees should know that employers are subject to additional sanctions for taking any adverse action against a reporting employee. These laws ensure that an employer does not take any adverse action against the reporting employee.

In fact, when an employee reports an employer to one of the regulatory agencies she may actually become more secure in her job because the employer becomes sensitive to the possibility of sanctions for retaliation.

We at Maduff actually had one case where this is exactly what happened. A number of employees came to us because their employer was not paying them proper overtime. These employees were also concerned that the company was already considering firing many them to cut costs. Among the employees who came to us, were two we’ll call Mary and Jack. We were prepared to file a lawsuit against the employer where all of the employees who had consulted us would be named as plaintiffs, including Mary and Jack. However, Mary was concerned that if she were a named plaintiff she would be fired immediately when the employer saw her name among the plaintiffd. Jack, on the other hand, decided he was not afraid of the employer and he became a named plaintiff. Shortly thereafter—you guessed it—Mary was let go. The employer must have decided that because Mary had not taken any action against it, its own action against her could not be construed as retaliation. But the employer did not touch Jack because it knew that if it fired him right after he had taken part in suing it, it would become liable to him for retaliation.

Understanding Retaliation, Technically an “Adverse Action” in Employment

An adverse action in employment can take many forms. It is therefore important to recognize when you have been subjected to retaliation. If there is any doubt you should consult an experienced employment attorney like the attorneys at Maduff & Maduff.

Retaliation Can Take Many Forms

Retaliation can take many forms and it is not possible to list all of them here. Furthermore, many times whether an employment action is adverse or not depends on the individual circumstances. We at Maduff have seen many cases of retaliation in many different forms. The following listing of post-complaint actions may be helpful, although it is by no means comprehensive:

  • Was your employment terminated after you filed your complaint?
  • Were you suspended or demoted after filing your complaint?
  • Did the employer cut your wages after filing your complaint? Did the employer reduce or eliminate your opportunities for overtime work?
  • Did your periodic reviews suddenly become negative when they had consistently been positive?
  • Were you transferred to a less desirable job, with or without a reduction in pay?
  • Did your working conditions get worse, e.g., less desireable hours or a smaller office.
  • Were you subjected to a negative workplace atmosphere after your complaint? This could come from management or co-workers who have been told by management to shun or refuse to cooperate with you.
  • Were you refused a pay increase or promotion that was scheduled or expected before you filed the complaint?

Retaliation is even worse than discrimination of theft of wages because it is intended to prevent employees from exercising their legal rights. This is what makes it so insidious. If you think you may have been a victim of employer retaliation or other misconduct, call the employment attorneys at Maduff & Maduff immediately. We are here to help you.

Understanding FMLA: The Most Common Questions

The Family and Medical Leave Act (FMLA) is a federal program that allows employees to take unpaid time off for eligible reasons. There are often many questions when it comes to FMLA, such as the following:

Do I qualify for leave under FMLA?

FMLA is only offered to certain employees. In order for an employee to be eligible for FMLA, they must have:

  • Worked for their employer for a minimum of one year.
  • Worked a minimum of 1,250 hours during the previous 12-months.
  • The employer must have  a minimum of 50 employees at the employee’s work location, or within 75 miles of that location.

What does FMLA provide?

FMLA grants eligible employees up to 12 weeks of unpaid leave for specified reasons, including the following:

  • The birth or bonding of a new child
  • A serious health condition
  • To care for an ill or injured family member
  • To help care for a family member that was injured during active military service
  • To prepare for a family member’s military service leave

Typically, an employee is entitled to 12 weeks of unpaid leave in a 12-month period, but there are circumstances in which a person can take more. In the event that another family member was injured during active military duty, or the same family member was injured during another tour, an employee will qualify to take up to 26 weeks of unpaid leave in a single 12-month period.

What are the benefits of taking FMLA?

FMLA was created to benefit and protect the eligible employee. FMLA allows the employee to maintain her current health benefits while on leave, receive the same pay rate as she did while working, and be reinstated to her position upon return from leave.

Employees are also protected against retaliation from their employer in the event that they need to take FMLA.

Do I get paid when taking FMLA?

Employees may elect to use accrued paid leave, however, FMLA is not a guaranteed paid leave. Employers may require that an employee use her paid leave, including vacation and sick pay, but the employer must provide sufficient notification requiring that the employee must do so.

Can I be fired for taking FMLA?

You cannot be fired for taking FMLA, however, employers can deny reinstatement to “key” employees, which typically consist of salaried or highly paid employees. It is important to know that employers cannot interfere with your FMLA rights, and cannot use your taking leave into consideration when making decisions about promotions and terminations.

What should I do if I my FMLA rights have been violated?

If you feel that you have been unfairly denied FMLA leave, contact an employment law attorney immediately.

The employment attorneys at Maduff & Maduff specialize in a variety of employment law related issues – including FMLA rights as well as overtime and wage theft, discrimination, violation of civil rights. Contact us today if you need help.

New in Illinois: Non-Compete Agreements With Low-Wage Earners are Illegal

On January 1, 2017, the Illinois Freedom to Work Act went into effect. The law prohibits private employers from entering into a non-compete agreement with “any low-wage employee.” The statute makes any such agreement “illegal and void.”

Under the law, a non-compete agreement applies to the many common restrictive covenants including:

  1. Any agreement that prohibits working for any other employer for a specific period of time;
  2. Any agreement that prohibits working within a specific geographic area; or
  3. Any agreement that prohibits working for another employer in the same or similar position as the employee current holds.

The restriction only applies to a  “low-wage employee” which is defined as an “employee who earns the greater of (1) the hourly rate equal to the minimum wage required by the applicable federal, State, or local minimum wage law or (2) $13.00 per hour.”

The new law applies only to those restrictive covenants entered into after January 1, 2017. Any previously executed agreement may still be enforceable, but will still be subject to common arguments that made non-compete agreements against low-wage earners difficult to enforce.

What Does This Mean Going Forward?

Employers: Employers that have made it a practice to ask all employees to enter into non-compete agreements, irrespective of hourly rate, will need to reevaluate those practices. The law also leaves open whether the definition of a restrictive covenant will apply to other common restrictions including non-solicitation agreements that apply to employees and customers.

Employees: Low-Wage Employees will no longer be tied down by a non-compete that can have a very real impact on upward mobility in the job market.

In Practice: The impact of this law will be minimal. Even when a “low-wage” employee was subject to a non-compete agreement, they were often not enforced. These employees rarely pose a threat to the company’s legitimate business interests and as a result even if a lawsuit was filed it is unlikely they would in fact be enforced.

If you are looking for work and are stuck with a non-compete agreement, or are a company in need of enforcing a non-compete agreement, or having one drafted, you need to speak to an employment lawyer at Maduff.

A New Year Brings New Employment Laws For Illinois

On January 1, 2017 a number of new laws went into effect in Illinois. Whether you are an employer or an employee, here are some employment laws you should know:

Social Media Password Protections

House Bill 4999 makes it illegal for an employer, or potential employer, to ask you to sign into your social media account in order to view your activities online. The legislation strengthens current laws that prohibit employers from accessing their employees’ social media accounts.

Additionally, the law makes it wrongful for an employer (or third party) to use log-in information gained through network security to access the “employee’s personal online account” and in most instances requires an employer to delete that information.

The amendment to the Right to Privacy in the Workplace Act also prohibits employers and potential employers from discriminating or retaliating against employees for failure to provide information about social media accounts. A complaint can be filed with the Illinois Department of Labor or a lawsuit may be filed if it is not resolved with the DOL.

Non-Compete Agreements And Low-Wage Employees

Senate Bill 3163 bans businesses from asking an employee who is paid the greater of (1) federal, state or local minimum wage or (2) $13.00 an hour to sign a non-compete agreement. In such agreement is “illegal and void” as a matter of law in Illinois. This law went into effect on January 1, 2017.

Flexible Use of Sick Leave

Senate Bill 6162 allows employees more flexibility in how they use their sick leave, making it a requirement that businesses that provide sick leave to employees to allow employees to use sick leave for immediate family members. There are some caps and other requirements.

Extension Of Employment Protection for Domestic Workers

House Bill 1288 creates a “Domestic Workers’ Bill of Rights,” extending Illinois’ employment protections to domestic workers, such as housekeepers and nannies.

Maduff and Maduff have been specializing in discrimination, harassment, and wage and hour theft for more than 20 years. For more information or help with your employment law needs, contact Maduff & Maduff today.

What You Need To Know About The Illinois Sick Pay Leave Act

On January 1, 2017, a new sick pay law will come into effect for employees in the state of Illinois. While it is called the Illinois Sick Pay Leave Act, it does not actually require employers to provide sick leave (starting in July, most Chicago employers must provide sick leave as well as Cook County Employers). The new law requires employers to allow employees to use sick leave not only for their own health situation, but also that of their children, parents and other immediate family members.

The law allows an employer to cap the amount of sick leave that can be used by someone other than the employee, however, that cap cannot be less than half the allotted sick leave available to the employee. The new law also provides additional protections for using sick leave and making it unlawful for an employer to discriminate against any employee exercising his or her rights under the new law. Any claims under the law must be filed with the Illinois Department of Labor.

As new laws are put into place there are a number of unique legal issues that arise. If you have any questions in regards to the new sick pay law, or with any other employment law issue, contact the attorney at Maduff & Maduff today.

Federal Overtime Law Blocked

December 1, 2016 was supposed to be the day that about 4 million Americans were set to qualify for overtime pay under a new federal rule by the Fair Labor Standards Act.

The new overtime law would have doubled the annual salary threshold from $23,660, to $47,476, which determines who qualifies for overtime pay when they work over 40 hours per week.

The rule also called for adjusting the threshold’s dollar amount every three years to keep pace with inflation.

Twenty-One States as well as a coalition of businesses filed suit to have the regulations blocked from being enforced arguing that the Obama administration overstepped its authority in issuing the rule, was temporarily blocked from going into effect.

On November 22nd, a U.S. District Judge in Texas issued a preliminary injunction against the overtime rule. As a result, both employers and employees are in an unusual state of limbo. Complicating matters, with the new Trump administration ready to take over the DOL in January there is a lot of uncertainty and the new administration may choose not to exercise any rights of appeal.

For more information on the federal overtime laws, or for help with your employment law needs, contact the attorneys at Maduff & Maduff.

The New Overtime Law: How It Will Affect You

Effective December 1, 2016, the Department of Labor is enacting a new overtime law in which the Fair Labor Standards Act is being changed, allowing the threshold annual income below which overtime pay is required (assuming all other requirements for overtime pay are satisfied) to rise to $47,500, compared to $23,660, which was the amount under the old law.

This means that salaried workers who make less than that amount will become eligible for overtime pay when they work more than 40 hours in a week. This is leaving millions of Americans wondering how the new overtime law will affect them. However, in order to understand how the new overtime law will affect you, you first must know how overtime pay works.

Understanding The Overtime Laws

Under the Fair Labor Standards Act (FLSA), a non-exempt employee, who qualifies for overtime, must receive time-and-a-half pay for any hours worked over 40 hours during a work week.

However, The FLSA also contains dozens of exemptions under which specific categories of employees are exempted from overtime requirements.

Employees that are considered exempt, and ineligible for overtime, are so if their job passes a duties and salary test, and involves the responsibilities as defined by the Labor Department. These positions typically consist of administrative, executive, and professional employees, as well as computer professionals, and employees who perform outside sales.

Exemptions from the overtime requirements of the FLSA are exceptions to the rule and are very narrowly construed by the courts. An employer will always have the burden to prove that he has correctly classified an employee as exempt, otherwise he could be liable to pay double the unpaid overtime plus the employees’ legal expenses.

Understanding The Changes To The Overtime Laws

While the only major change to the FLSA’s overtime law is the salary threshold for exempt employees, which is almost doubling, this is leaving many employees wondering if they will now be considered non-exempt, becoming entitled to overtime.

The Labor Department has concluded that people who have the title of “Manager” or “Assistant Manager”, especially in retail or service operations, may be the ones who will be more affected than others, simply because of what their responsibilities entail and how much they are paid. This means that if their position can’t pass both the duties and salary tests, they will now be entitled to overtime pay.

The new overtime laws could be quite costly for employers. This is where employers may look to make meaningful changes in job duties (not just titles) to ensure they don’t become liable for overtime pay to employees who were not entitled to overtime pay in the past.

For more information or any questions that you may have in regards to your employment rights or eligibility to receive overtime pay or your duty to pay overtime, contact the attorneys at Maduff & Maduff today.

10 Ways a Small Business Can Control Unemployment Insurance

As we outlined in a previous blog post Employer Basics: Unemployment Insurance in Illinois, an established employer must pay a percentage of each employee’s wages, up to an annual base of $12,690, into the State’s Unemployment Fund and that percentage can range from 0.55% to 7.75%. This difference can be significant, a multiple of more than 14 times, from a low of $71.28 to a high of $1,004.40 per employee.

So what determines the percentage of tax an employer must pay and how can he control it? The percentage an employer must pay is directly related to the number of employees claiming benefits in previous years. As a result, an employer can save a significant amount of money by putting into effect policies, procedures and practices that are designed to minimize unemployment claims (such policies, if done correctly also typically have the benefit of being the best defenses in a lawsuit as well).

Here are 10 Ways to Limit Your Risk:

1. Employee Manual. An employer should have an employee manual that applies a set of policies, practices and discipline measures to all employees. Any infraction of a policy should be dealt with according to the policy. An employer will need to show that the terminated employee knew the rules and was treated the same as everyone else. Work with your attorney to help draft a manual specific to your business.
2. Adequate Job Descriptions. Job descriptions create the foundation of what an employer expects his employee to do. Create simple, straightforward, reasonable and clear expectations and work behavior.
3. Document Each Violation. Anytime an employee violates a rule, policy, or directive by a supervisor, it should be documented in the employee’s file. These procedures should be laid out in the Employee Manual. An employee that has been repeatedly told that not to do something, but continues she may be committing “misconduct” under the Unemployment Insurance Act. Of course, there may be some instances of misconduct that, as spelled out in the Employee Manual, even a single infraction is cause for immediate termination.
4. Employee Acknowledgement. Whenever you give an employee a manual, a job description or a written warning and employer should document that it was given to the employee. The key is that the employee should acknowledge receiving it (or a witness noting the employee refused to sign). A paper trail is important to document an employee had actual knowledge of a rule or policy.  Be clear that in signing the document the employee is acknowledging only  that he received it and not necessarily agreeing with it. That will make an employee more agreeable to sign the acknowledgment.
5. 30 Working Days.  Liability only attaches once the employee has been working for 30 working days (usually the equivalent 30 shifts – but this can vary). If an employee is not meeting your expectations, work with your attorney to determine the correct steps (following all of your established policies and procedures) to terminate the employee within 30 working days.
6. Transfer. If the 30 Working days has expired, consider transferring an employee into a new role rather than laying her off. An employee’s skill set may not match well with the current role, but there may be a better opportunity in another department.
7. Follow Up. Many organizations set out a 30, 60 or 90 day improvement plan with regular reviews but fail to actually follow through on it because of other commitments for performance or disciplinary inadequacies. If the conduct at issue is in the clear control of the employee (tardiness, behavior) consistent follow up can help defeat an unemployment claim.
8. Disability, Social Security or Worker’s Compensation. If an employee is receiving any of these three benefits, you may be able to avoid liability for an increase in unemployment insurance rates because in many cases the employee is not able to work which disqualifies them from unemployment compensation.
9. Document Resignations. When an  employee resigns ensure there is a letter, email, or other document that confirms the employee’s decision to resign.
10. Respond to All Unemployment Claims. Like most states, Illinois’ unemployment system expects all parties, including the employer, to meet deadlines, attend hearings, and not delay the process. Many employees receive benefits simply because the small business owner never gave the hearing officer the right contact information.

If you have questions or need help with managing your unemployment claims, developing practices and policies for your business contact the experienced attorneys at Maduff & Maduff today.