Employment Law Issues

Transcription

1 Employment Law Issues Illinois Association of Defense Trial Counsel By: Francis A. Spina Tressler, Soderstrom, Maloney & Priess, Chicago State Employment Statute Potpourri The Illinois Compiled Statutes contain a myriad of statutory provisions dealing with the employment relationship. Many of the statutes are unknown to all but employment attorneys and the most well-versed corporate human resources managers. This article will summarize the provisions of several of the most relevant, interesting, or unusual acts. The Personnel Record Review Act (820 ILCS 40/0.01 et seq.) deals with the right of employees to examine certain personnel records kept by their employers. It applies to employers having five or more employees (exclusive of the employer s immediate family members). (40/1(b)). It requires an employer upon request to permit the employee to inspect any personnel documents used in determining an employee s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action. (40/2). The employer must grant at least two inspection requests per calendar year. The records must be made available within seven working days after the request is made, at a location reasonably near the employee s place of employment, and during normal working hours. There is no requirement which allows an employee to remove any part of the records from the employer s premises. The employee has the right to obtain copies of any part of the information, while the employer may charge a fee limited to the actual cost of duplicating the information. (40/3). The inspection requirement does not apply to letters of reference for the employee, external peer review documents for academic employees, any portions of test documents other than the cumulative total test scores, materials related to the employer s staff planning where the materials relate to more than one employee, information of a personal nature about a person other than the employee if disclosure would constitute a clearly unwarranted invasion of privacy, records relevant to any pending claim between the employer and employee which may be discovered in a judicial proceeding, and investigatory or security records maintained by an employer to investigate criminal conduct or other activities by the employee which could reasonably be expected to harm the employer s property, operations or business or could cause the employer financial liability (unless the employer takes adverse personnel action based on the information in such records). (40/10). Any records which were not included in the personnel record, but which should have been included because they fall within the scope of the Act cannot be used by an employer in any judicial or quasi-judicial proceeding. However, the presiding officer can allow the use of the records if the evidence shows that the information was not intentionally excluded from the record and if the employee agrees or has been given a reasonable opportunity to review the information. (40/4). If the employee disagrees with any information contained in the personnel record, a removal or correction of that information may be mutually agreed upon by the employer and the employee. If agreement cannot be reached, the employee may submit a written statement explaining his position, which must be attached by the employer to the disputed portion of the personnel record. If either the employer or employee knowingly places in the personnel record information which is false, the other shall have the remedy through legal action to have the information expunged. (40/6). An employer shall not divulge a disciplinary report, letter of reprimand or other disciplinary action to a third party without written notice sent by first class mail to the employee s last know address mailed on or before the date that the information is divulged. The notice requirement does not apply if the employee has specifically waived written notice as part of a written, signed employment application with another employer, or if the disclosure is ordered to a party in a legal action or arbitration, or if the information is requested by a Page 1 of 5

2 government agency as a result of a claim or complaint by an employee or as a result of a criminal investigation by the agency. (40/7). An employer is required to review a personnel record before releasing information to a third party and must delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than four years old, except when the release is ordered to a party in the legal action or arbitration. (40/8). An employer is prohibited from gathering or keeping a record of an employee s associations, political activities, publications, communications or non-employment activities, unless the employee submits the information in writing or authorizes the employer in writing to keep or gather the information. The prohibition does not apply to activities that occur on the employer s premises which interfere with the performance of the employee s duties or those of other employees, and which reasonably may be expected harm the employer s property, operations or business or could cause the employer financial liability. (40/9). The Illinois Director of Labor is authorized to administer and enforce the Act. A claim of denial of rights under the Act is filed by the employee with the Department of Labor. The Department is authorized to commence an action in the Circuit Court to enforce provisions of the Act in the event the Department finds that the employer has violated the Act. The employee may also commence an action in court to enforce the Act where efforts before the Department have failed, and the Department has not commenced an action in court to redress a violation. An employee who prevails in an action under the Act is entitled to actual damages plus costs. In addition, for a willful and knowing violation, a $200 penalty and attorney s fees are awarded. Further, an employer who violates the Act is guilty of a petty offense. (40/21). Th e Right To Privacy In Th e Workplace Act (820 ILCS 55/1 et seq.) prohibits discrimination against an employee for the use of lawful products. An employer may not refuse to hire, and may not discharge or otherwise disadvantage any individual with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during non-working hours. It is not a violation of the Act for an employer to offer, impose or have in effect a health, disability or life insurance policy that makes distinctions based upon the use of lawful products, so long as any differential premium rates reflect a differential cost to the employer, and the employer provides employees with a statement delineating the differential rates. (55/5). It is unlawful for an employer to inquire, in a written application or in any other manner, of any prospective employee or of that employee s previous employers, whether the employee has ever filed a claim for Workers Compensation or Workers Occupational Diseases Act benefits. (55/10). The Director of the Department of Labor is authorized to administer and enforce the Act. An employee may file a complaint of violation of the Act with the Department of Labor. Similar to the Personnel Record Act, the Department or the employee may commence an action in court, with similar damages. (55/15). The Director or the court shall summarily dismiss any complaint which alleges a violation of the Act premised upon the employer offering a health, disability, or life insurance policy that makes a distinction between employees for the type of coverage or the price of coverage based upon the employee s use of lawful products. (55/20). The Equal Wage Act (820 ILCS 110/1 et seq.) prohibits an employer which has six or more employees engaged in the manufacture of any article, to pay any person an unequal wage than is being paid to any other person employed in such manufacture for equal work. The statute does not prohibit variation and rates of pay based upon either differences in seniority, experience, training, skill or ability, or differences in duties or services performed, or differences in availability for other operations, or any other reasonable classification, except a difference in sex. An employer who violates the Act is guilty of a petty offense, and can be fined between $25 and $100. (110/1). Any action based upon violation of the Act must be instituted within six months of the date of the alleged violation. (110/2). The Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq.) applies to all employers in Illinois. It requires wages to be paid at least semi-monthly, except for executive, administrative and professional employees, who may be paid once a month. Commissions may be paid once a month. (115/3). Wages paid during a semi-monthly or bi-weekly pay period must be paid within thirteen days after the end of the pay period in which the wages were earned. Weekly wages must be paid not later than seven days after the end of the period. Daily wages shall be paid on the same day, and in any event not later than twenty four hours Page 2 of 5

3 later. Wages must be paid with United States currency by check, or by depositing funds in a bank account designated by the employee. (115/4). A separated employee must be paid in full, at the time of separation and in no event later than the next regularly scheduled pay day for such an employee, the final compensation. This includes the monetary equivalent of all earned but unused vacation time. (115/5). The Department of Labor is authorized to enforce the Act. (115/6). Employers are prohibited from making deductions from the wages or final compensation of an employee unless such deductions are required by law, benefit the employee, are in response to a valid wage assignment or wage deduction order, or are made with the express written consent of the employee given freely at the time the deduction is made. Where the legitimacy of any deduction from wages is in dispute, the amount in question may be withheld only if the employer notifies the Department of Labor on the date the payment is due, in writing, the amount that is being withheld and the reasons for withholding. Upon such notification, the Department must conduct an investigation and render judgment as promptly as possible. The employer shall pay wages due upon an order of the Department, within fifteen days of the order. In the case of a dispute over wages, the employer shall pay without condition all wages conceded by him to be due, leaving to the employee all remedies to which he may otherwise be entitled as to any balance claimed. The acceptance by an employee of a disputed paycheck does not constitute a release as to the balance. (115/9). Employers are required to notify employees at the time of hire of the rate of pay and the time and place of payment. It should be in writing where possible. Employers shall also notify employees of changes, prior to the time of the change. Employers are required to keep records of the names and addresses of all employees and of wages paid in each pay day, and must furnish employees with an itemized statement of deductions made from wages for each pay period. (115/10). Any employer who willfully refuses to make a payment required by the Act, or who falsely denies the amount or validity of any payment with the intent to secure for himself or another person any underpayment of such indebtedness, or with the intent to annoy, harass, oppress, hinder, delay or defraud the person to whom such indebtedness is due, is guilty of a Class C misdemeanor. In addition, any employer ordered by the Director of Labor or the court to pay wages who fails to do so, is liable to pay a penalty of 1% per calendar day to the employee for each day of delay, up to an amount equal to twice the sum of unpaid wages due. (115/14). The Wages of Women and Minors Act (820 ILCS 125/0.01 et seq.) declares it to be against public policy for an employer to employ any woman or minor in an occupation at an oppressive and unreasonable wage. (125/2).The Department of Labor is authorized to enforce the Act. If the Department has reason to believe that an employer is not observing the provisions of any order made by it under the Act, the Department may cause to be published in a newspaper the name of any employer and a description of its failure to observe the provisions of the order. (125/9). The One Day Rest in Seven Act (820 ILCS 140/1 et seq.) requires an employer to give every employee at least twenty four consecutive hours of rest in every calendar week in addition to the regular period of rest allowed at the close of each working day. Certain exceptions are set forth. (140/2). In addition, every employer must permit employees who are to work for seven and one-half continuous hours or more at least twenty minutes for a meal, beginning no later than five hours after the start of the work. Certain exceptions to this requirement are set forth in the statute, including employees for whom meal periods are established through the collective bargaining process. (140/3). The statute also requires employers to post a schedule listing the employees who are required or allowed work on Sunday, and designating the day of rest for each of them. (140/4). Every employer is required to keep a time book showing the names and addresses of all employees and the hours worked by each of them, which shall be open to inspection by the Director of Labor. (140/5). The Director may grant permits authorizing employment of persons on days of rest, which shall not authorize employment of persons for more than eight weeks in any one year on seven consecutive days. (140/8). Page 3 of 5

4 Th e Eight Hour Work Day Act (820 ILCS 145/0.01 et seq.) defines eight hours of labor between the rising and setting of the sun, in all mechanical trades, arts and employment, and other cases of labor and service by the day except farm employment, to be a legal day s work. Th e School Visitation Rights Act (820 ILCS 147/1 et seq.) requires an employer who employs at least fifty or more individuals in Illinois to grant an employee a total of eight hours during any school year, although no more than four hours on any given day, to attend school conferences or classroom activities related to the employee s child where the conference or activity cannot be scheduled during non-work hours. However, such leave cannot be taken unless the employee has exhausted all accrued vacation leave, personal leave, and any other leave that may be granted to the employee, except sick and disability leave. The employee must provide the employer with a written request for leave at least seven days in advance, except in emergency situations, for which no more than twenty-four hours notice shall be required. The Act does not require the leave to be paid. (147/15). An employee who uses the rights afforded by the Act may choose the opportunity to make up the time on a different day or shift, but cannot be required to do so. If the time is made up, the employee shall be compensated for the time taken. (147/20). The Disclosure of Offenses Against Children Act (820 ILCS 210/0.01 et seq.) requires any private organization other than a school which devotes a major portion of its time to providing recreational, social, educational or safety services to children under age 18 to require a current employee or volunteer or applicant for employment to sign a statement under penalty of perjury stating whether the person has ever been convicted of or charged with an offense involving the person s intentional infliction of physical injury upon a child, sexual abuse of a child, or child abduction under the laws of any State or the United States. (210/1). Th e Medical Examination of Employees Act (820 ILCS 235/0.01 et seq.) prohibits an employer from requiring an employee or applicant to pay the cost of a medical examination or the cost of furnishing records of such an examination, which are required by an employer as a condition of employment. (235/1). Th e Toxic Substances Disclosure To Employees Act (820 ILCS 255/1 et seq.) requires every employer which has twenty or more employees or five or more full time employees in the State to submit to the Director of Labor on an annual basis, an alphabetized list of substances, compounds or mixtures for which the employer has acquired Material Safety Data Sheets. (255/5). Employers are also required to post in the workplace a sign informing employees of their rights under the Act. (255/7). Employers are required to obtain a Material Safety Data Sheet for each toxic substance used, produced or stored in the workplace to which employees may be exposed. Copies must be made accessible to employees for at least ten years after the substance is no longer used, produced or storage. (255/9). The Director is required to establish a list of toxic substances on an annual basis. (255/4). The employer is required to provide all employees with an education and training program with respect to all toxic substances to which the employee is routinely exposed in the course of employment. (255/16). Violations of the Act are pursued by the Department of Labor. A $1,000 penalty can be assessed for each violation, while a $10,000 penalty per violation can be assessed for a willful or repeated violation of the Act or an order of the Director. In addition, punitive damages may be assessed for knowing and willful violations of the Act, which cannot exceed ten times the monetary amount owed by the liable party or $20,000, whichever is larger. (255/17). Last, but certainly not least, The Employee Washroom Act (820 ILCS 230/0.01 et. seq.) requires every owner or operator of a coal mine, steel mill, foundry, machine shop, railroad, or other like business in which employees become covered with grease, smoke, dust, grime and perspiration, to provide and maintain a suitable and sanitary washroom, with an adequate amount of soap containing bland non-irritating detergents which effectively cleanse the skin, at a convenient place where employees are require to report for duty or are relieved from duty. (230/1). The washroom must be arranged to allow employees to change their clothing therein, shall be provided with lockers or hangers, and an adequate supply of safe, clean and potable water satisfactory for drinking purposes dispensed in a sanitary manner, as well as an adequate supply of safe, clean, hot and cold water satisfactory for shower or bathing purposes, and with sufficient and suitable places and Page 4 of 5

5 means for using the same. The floor space necessary for the employees to dress in such washroom shall not be less than seven square feet per employee regularly dressing in the washroom at any one time. (230/2). Page 5 of 5