ILLINOIS Employment Law
Trusted compliance advice for Illinois employers
Editor: Richard H. Chapman, Esq., Clark Hill PLC, Chicago
Time off for binge drinking doesn’t qualify for FMLA leave
mployees who are alcoholics may be disabled under the ADA, and are entitled to reasonable accommodations for treatment. That treatment also qualifies the employee for FMLA leave. But it doesn’t mean you have to tolerate or forgive unauthorized absences to indulge an alcoholic binge. In fact, if you have a solid, no-fault attendance policy, you will be able to count those unexcused absences toward the employee’s accumulated absences. Just make sure you don’t count treatment time—such as periods spent in an actual rehabilitation program. FMLA rules clearly state that “leave may only be taken for treatment of substance abuse by a health care provider.”
Recent case: Krysztof Chalimoniuk struggled with alcoholism. His employer had a stringent, point-based attendance system. When Chalimoniuk went on a drinking binge that lasted for days, his wife arranged for him to enter a treatment program. But, before he was admitted, he missed three days and tried to get those absences excused as FMLA leave. His doctor listed his period of incapacity as including the three days, but actual treatment didn’t start until later. Chalimoniuk’s employer fired him for accumulating too many absences under the attendance policy, and he sued, alleging all the time should have been counted as FMLA leave. The 7th Circuit Court of Appeals
hospital offered her a transfer or termination. She accepted the transfer; but when the two co-workers continued to hound her, she asked for medical leave. The hospital denied her request and fired her when she called in sick. Months later, Phelan filed an EEOC complaint. Just two days after the filing, the hospital reinstated her with full back pay. But she still followed through with the lawsuit and the 7th Circuit let the case go to trial. The court said it refused to “allow employers to escape
In this issue
You can’t force employee to use paid time if on disability . . . . . . . . . . . . . . . . . . 3 National Roundup: Compliance lessons from other states . . . . . . . . . . . . . . . . . . 4 Progressive discipline: How to apply a fair and firm policy . . . . . . . . . . . . . . . . . 7 The Mailbag: Your questions answered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 •
disagreed. It quoted the FMLA regulation, which clearly states that while treatment time for substance abuse (including illegal drugs and alcohol) is covered, “absence because of an employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.” (Darst v. Interstate Brands, No. 04-2460, 7th Cir., 2008)
Free report How to Wipe Out FMLA Fraud and Abuse For an 11-step process to prevent fraud by employees inclined to “work” the system, access our free white paper, How to Wipe Out Fraud and Abuse Under FMLA, at www.theHRSpecialist.com/whitepaper.
Get it right the first time; ‘whoops pay’ won’t fly in court
ere’s added incentive to make correct employment decisions the first time around: An Illinois court ruling makes clear that employees can still sue for discrimination even if your organization quickly reverses a decision. It doesn’t matter whether you do everything you can to make the employee “whole” again, including paying any lost wages or benefits. Recent case: Laura Phelan, a maintenance worker at Cook County Hospital, claimed to have been sexually harassed by two co-workers. In response, the
June 2008 Special Issue
liability by merely reinstating the aggrieved employee months after termination, whenever it becomes clear that the employee intends to pursue her claims in court.” (Phelan v. Cook County, No. 01-C-3638, 7th Cir.) Final tip: If you have any doubt about a discharge or pay cut, call a timeout. It’s safer to suspend an employee with pay while you thoroughly investigate and document the case. And if you reinstate an employee, do so as part of a settlement agreement in which the employee waives discrimination claims.
Illinois Employment Law is published by HR Specialist and is edited by Richard H. Chapman, an attorney with the Litigation Practice Group at Clark Hill PLC in the firm’s Chicago office. He has more than 24 years of experience as a leading trial lawyer on business-litigation issues. Contact him at: rchapman@ClarkHill.com, (312) 985-5900.
National Institute of Business Management
‘Name, rank and serial number’ is still your best bet for references
LEGAL BRIEFS Hey, customers! Guess what? We’re sexual harassers! Your company wants to announce its vision to customers, not its verdicts. But that’s what a judge is forcing Custom Companies, a Northlake trucking firm, to do. In a startling ruling, the judge required the company to distribute a notice to its customers informing them of the $1 million sexual-harassment verdict levied against it. The company also had to post a notice informing all employees. “Make no mistake about it, this is a big decision. It’s really important,” said John Hendrickson, the EEOC’s regional attorney in Chicago. Bottom line: Other judges may decide to use the same customer-notification tactic when punishing employers in harassment cases. This is one more reason to regularly train all employees—including supervisors—on anti-harassment policies and practices.
Infertility is considered a disability under ADA Employees who are infertile may qualify for reasonable accommodations under the ADA. That’s true even if the underlying medical condition that caused the infertility has been cured. As a result, you may be required to give infertile employees time off for fertility treatments and even adoption planning.
Recent case: A computer programmer developed cancer of the uterus and had to undergo a hysterectomy. When she sued for disability discrimination, the question arose whether she was truly disabled simply due to her infertility. The court said yes. Because child-bearing is a major life function (as the Supreme Court decided years ago in the Bragdon v. Abbott case involving an HIV-positive person), infertile employees are disabled and entitled to accommodations to deal with infertility. (Yindee v. CCH, Inc., No. 05-3069, 7th Cir.)
Free Report To learn how far you’re required to go in offering accommodations, access our free white paper, ADA: The Limits of Accommodation, at www. theHRSpecialist.com/whitepaper.
Illinois Employment Law • June 2008
he old adage, “If you can’t say anything nice, don’t say anything at all,” seems perfectly suited to employersupplied references. When an employer inquires about one of your former employees, the safest approach is to provide no information beyond the employee’s position and employment dates. Expounding further can lead to defamation or invasion-ofprivacy lawsuits, especially if the employee doesn’t get the job. If you do provide more details, require ex-employees to sign a waiver that releases your organization of liability for offering the reference (see box, at right). Recent case: Florence Hicks, who is black, was fired after months of problems at work. She then applied for a job at Target and understood that she’d get it if her former employer gave her
a good reference. But the Target job never materialized. Hicks sued her former employer, alleging defamation. She assumed she’d gotten a poor reference. But the company was able to show that Target never contacted it, so it couldn’t have provided any information. The case was dismissed. (Hicks v. Medline Industries, No. 06-3217, 7th Cir.) Final tip: Whatever your policy, train your supervisors on how to handle those inevitable, “Can you tell me about Kevin?” calls.
Free reference release form To download a sample employee waiver that releases your organization from liability for references, go to the White Paper section of the HR Specialist site at www. theHRSpecialist.com/whitepaper.
Court: Written complaint procedure must be tailored to your ‘average’ employee W
hen was the last time you read your organization’s harassment reporting procedures? Could all employees in your organization understand how— and with whom—to file a complaint? It’s important to ask these questions in the wake of a new court ruling that should give you incentive to cut the legalese and confusion out of your reporting procedures. Your organization typically can avoid liability in a harassment suit if it can show that the alleged victim bypassed your company’s “reasonable” complaintfiling procedures. But if those procedures are confusing, a court may green-light the lawsuit anyway. Recent case: A 16-year-old worker at a Burger King rejected her boss’s sexual advances. She complained to her shift manager, who did nothing. Finally, her mother went to the restaurant to complain to the manager on duty. The boss fired the worker, who sued for harassment.
Burger King argued that it shouldn’t be liable because the employee didn’t follow the restaurant’s harassment reporting procedures, and that an employee’s mother has no standing to put the company on notice of harassment. (The handbook told employees to report harassment to the district manager, but never gave their names or phone numbers.) Result: The court sided with the employee. It said the employee’s mother acted as her “agent” in notifying the company of harassment, similar to the way a lawyer does. Plus, the court said Burger King’s complaint procedures were likely to confuse even adult employees. Here’s what the court said: “An employer is not required to tailor its complaint procedures to the competence of each individual employee. But, if it is part of the business plan to employ teenagers … the company was obligated to suit its procedures to the understanding of the average teenager.” (EEOC v. V&J Foods Inc., 7th Cir.) (800) 433-0622
You can’t force employee to use paid time if on disability
f you require employees to use accumulated sick leave, vacation time or other paid leave when they’re out on FMLA leave, be aware of a littlenoticed trap: If that employee also is receiving payments through a disability plan, you can’t force the person to use up his or her accumulated paid leave. That’s true whether the disability payments come from workers’ compensation, an employer-sponsored shortterm disability plan or a third-party one. The practical effect is that employees who enjoy partial wage replacement under disability insurance plans can come back to work with accrued vacation, sick leave and personal leave intact, or use that to extend their leave beyond the 12 weeks guaranteed by the FMLA. Note: Nothing prevents you from running the 12 weeks of unpaid FMLA leave concurrent with partially paid disability leave. You still can subtract the FMLA entitlement for the year. What you cannot do is wipe out other paid leave, as you can when employees take unpaid FMLA leave
and don’t have a disability plan providing partial wage replacement. Recent case: Alice Repa worked for Roadway Express when she was injured off duty and needed surgery. Her injury qualified for FMLA coverage and for partial wage replacement payments under a short-term disability policy, which was sponsored by her employer and union. Roadway informed her that it was applying six weeks of her FMLA entitlement to her time off. It then paid her for accumulated vacation and sick
leave, wiping those balances out. In effect, when she returned to work, she had no sick leave or vacation time left. She sued, alleging the move violated federal FMLA regulations, which say that employers can require substitution of paid leave only if FMLA leave would otherwise be unpaid. The court reasoned that employees receiving partial payments under an insurance policy aren’t on unpaid leave and, therefore, you can’t apply accumulated paid leave. (Repa v. Roadway Express, No. 06-2360, 7th Cir.)
Rules for running FMLA leave concurrent with other leave 1. If an employee is out because of a serious health condition, a family member’s serious condition or pregnancy/delivery of a child, apply up to 12 weeks of FMLA leave to the absence if the employee is eligible for FMLA leave. 2. To be eligible, the employee must have worked for the company at least one year (total) and at least 1,250 hours in the past year. Plus, your organization must employ 50 or more employees at the workplace or within 75 miles of the workplace. 3. If the employee is out on workers’ comp or another temporary disability program that provides partial or full wage replacement, do not deduct any accrued vacation or sick time for the absences.
Train managers to handle safety inspections professionally
surprise visit from an OSHA inspector can dump much stress on an organization. But make sure your supervisors know how to respond when the unwelcomed visitor arrives. The wrong reaction can trigger a messy lawsuit. In many cases, OSHA inspections are triggered by employees who aim to blow the whistle on an employer’s safety violations (either real or imagined). Some employees truly believe their safety or health is at risk. Others hold a grudge unrelated to workplace safety and see calling the “feds” as the easiest way to stick it to the company. Either way, your organization must react calmly and professionally. Don’t grill employees about who made the call or lash out at the worker who did so. Whistle-blowers are protected by law,
and any retaliation will be punished harshly in court, as a new case shows. Recent case: Cuthberto Gomez worked as a supervisor for the Finishing Company in an area where spray paint was applied to wire racks. Gomez was convinced the masks his employees used didn’t offer enough protection. He complained to management several times, then he called OSHA. When OSHA announced its plans to inspect, the plant manager told Gomez to find out who called the agency. Rumors circulated that whoever had made the call would be fired. A month later, Gomez was fired as part of a “cost-reduction move.” He sued, claiming retaliation. A jury awarded him more than $100,000 and an appeals court agreed, saying ample
evidence showed that managers guessed Gomez made the call and fired him in retaliation. (Gomez v. The Finishing Company, No. 1-05-3386, Appellate Court of Illinois, First District)
Top 10 safety violations 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
Scaffolding Fall protection Hazard communications Respiratory protection Lockout/tagout rules Powered industrial trucks Electrical wiring methods Machine guarding Ladders Electrical systems
June 2008 • Illinois Employment Law
Compliance lessons from other states
Don’t let managers fly solo on terminations
Hiring tests must reflect true work conditions
MINNESOTA Virginia Schurmeier, an operations analyst for a food wholesale company, was fired for alleged poor performance. She sued, claiming the real reason was sex discrimination. Her proof: A male co-worker who had worse performance appraisals than she had—plus he had been written up for the same mistakes by the same supervisor that wrote up Schurmeier—wasn’t fired. She told the court that male bosses generally ignored women while catering to men by sharing cigars and scotch. That was enough for the court to order a jury trial. (Schurmeier v. Nash Finch Company, No. 063860, DC MN) Advice: Nothing will send a discrimination case to trial faster than obvious unequal treatment. Have someone in HR do a complete review before the company terminates an employee for poor performance. If you spot possible unequal treatment, consult an attorney before following through.
IOWA Women accounted for half of the new hires at a meatpacking plant until the company instituted a new prehire lifting test. Then the percentage of women fell to 15%. Fifty-two female applicants who failed the test and weren’t hired sued for discrimination—and won $3.3 million. The seven-minute test required applicants to lift 35 pounds at least six times per minute. But the EEOC showed that employees, while at work, performed just 1.3 lifts per minute. Almost all men passed the test; only 40% of women did. (EEOC v. Dial Corporation, No. 05-4183, 8th Cir.) Advice: Before you create an applicant screening test, make sure it relates directly to the work the person will be doing. Then, evaluate the test regularly to see whether it’s causing you to reject a disproportionate number of “protected” applicants (e.g., women, minorities). The EEOC is actively pursuing employers whose tests change the workplace composition.
Don’t tell customers why employee was fired NORTH CAROLINA UPS fired a driver with 30 years’ experience for “dishonesty,” claiming that he double-scanned some packages, which increased his pay by $14,000. He said those were honest mistakes. He sued for slander, arguing that UPS had told many people in the community that he’d been fired for dishonesty. In the end, the court dismissed the case on a technicality because his lawyer didn’t authenticate the 74 pages of letters local residents wrote on his behalf. Had those letters been entered as evidence, the case would have gone forward. (Hearne v. United Parcel Service, No. 5:06-CV-117, ED NC) Advice: Some things are better left unsaid. That’s especially true when it comes to telling others—even customers and others outside the company—why an employee was fired. Spilling the beans can lead to a slander lawsuit, which costs time and money even if you ultimately win.
Illegal status doesn’t stop job-bias suit NEW JERSEY Maria Pineda worked for Bath Unlimited although she didn’t have legal work papers. Two weeks after Pineda divulged her pregnancy, Bath fired her. The EEOC asked for an explanation. Bath cited excessive absenteeism, but Pineda claimed to have had a doctor’s note for each absence, which the company accepted before her pregnancy. A court ordered a jury trial, which will focus on pregnancy bias, not her illegal status. (Pineda v. Bath Unlimited, No. 06-CV-2328, DC NJ) Advice: Enforce all rules equally for all employees. Even undocumented employees can sue your organization for on-the-job employment discrimination. Federal courts will entertain discrimination lawsuits, ignoring illegal status. Such employees probably won’t win lost wages (since they can’t work legally), but they still may be awarded other damages—such as for emotional pain and suffering.
NO HR IEmLLI ployment Law ers SPECIALIST employ for Illinois
Editor: Richard H. Chapman, Esq., Clark Hill PLC, Chicago, (312) 985-5900 Contributing Editor: Anniken Davenport, Esq., HRILeditor@NIBM.net Editorial Director: Patrick DiDomenico Senior Editor: John Wilcox, (703) 905-4506, jwilcox@NIBM.net Copy Editors: Nancy Baldino, Cal Butera
Publisher: Phillip Ash Associate Publisher: Adam Goldstein Production Editor: Dan Royer Production Assistant: Nancy Asman Customer Service: (800) 433-0622, customer@NIBM.net
HR Specialist: Illinois Employment Law (ISSN 1934-1598) is published monthly by the National Institute of Business Management LLC, 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA 22043-2004, (800) 543-2055, www.NIBM.net. Annual subscription price: $299. © 2008, National Institute of Business Management. All rights reserved. Duplication in any form, including photocopying or electronic reproduction, without permission is strictly prohibited and is subject to legal action. For permission to photocopy or use material electronically from HR Specialist: Illinois Employment Law, please visit www.copyright.com or contact the Copyright Clearance Center Inc., 222 Rosewood Dr., Danvers, MA 01923, (978) 750-8400. Fax: (978) 646-8600. This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal service. If you require legal advice, please seek the services of an attorney.
Illinois Employment Law • June 2008
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Employment Law News No-show ‘employee’ arrested after cashing paychecks for five years A Palatine man has been charged with theft by deception after he failed to report that the telecommunications company Avaya, based in New Jersey, had deposited paychecks totaling $469,000 into his checking account, despite the fact that he never worked there. Anthony Armatys accepted a job with Avaya in 2002, but changed his mind and withdrew the application before his start date. But Armatys already was entered into the company’s payroll system. For five years Avaya deposited checks into his bank account. Armatys even participated in the company’s retirement plan, making contributions to an account administered by Fidelity Investments. When he called Fidelity to arrange a withdrawal, he identified himself as an Avaya employee. That triggered an 11-month investigation that led to Armatys’ arrest. Note: Audit, anyone?
Lewd butcher kept on well past ‘sell-by’ date Jewel Food Stores settled a sexualharassment lawsuit with four female employees for $200,000, but the meat department manager who spawned the suit has had a surprising shelf life. The manager committed numerous lewd acts in front of managers and customers, including throwing a female employee onto a table and simulating having sex with her, swinging a pork tenderloin between his legs and drawing genitalia on butcher paper. He also racially harassed three of the plaintiffs, who are black, using racial epithets. Obviously, the manager had a harassing history. But rather than disciplining him, Jewel transferred him from Lemont to Orland Park, where eight employees testified he harassed them there. After another lawsuit, Jewel demoted him, but didn’t fire him. Final note: A sexual harassment policy with no discipline attached is worthless. Companies have a duty to protect their workers. www.theHRSpecialist.com/IL
What’s the biggest employment law issue you face today? Asked of Illinois HR professionals at a recent Society for Human Resource Management conference. Here are some of their responses: “My biggest issue is administering FMLA leave. I would NOT encourage the state legislature to create its own FMLA rules—dealing with federal law is hard enough. Also, HIPAA puts a lot of constraints on how much information you can get from your employees … We refer to FMLA as ‘Forget My Last Absence.’” — Ellen, Schaumburg
“Immigration. The country needs to create a fair way for hard-working people to become accepted members of society. Undocumented people who are working hard and paying taxes should be allowed to become citizens and work legally.” — Lori, Glenview
“The whole idea of leadership development is critical to us. So many of our executives are leaving and we have to make sure our organization has a good succession plan in place. We’re starting to do that more aggressively these days.” — Eva, Chicago
Don’t overlook Illinois tax break for hiring veterans Plenty of good reasons already exist for hiring veterans, including strong work ethic, leadership skills and diverse backgrounds. But your organization can also earn an income tax credit of up to $600 for every qualified veteran you hire. Many employers have overlooked the fact that Illinois introduced a Veteran’s Tax Credit of 5% of wages—up to $600 per employee—for wages paid to qualified veterans who work at least 185 days during the tax year. It applies to wages paid to veterans hired after Jan. 1, 2007, who were members of the armed forces, the reserves or the Illinois National Guard on active duty in Operation Desert Storm, Operation Enduring Freedom or Operation Iraqi Freedom.
Fortune names 11 Illinois employers among best to work for Fortune magazine recently published its 2008 list of “100 Best Companies to Work For,” and nine Chicago employers made the list: The Boston Consulting Group, Deloitte & Touche USA, Ernst & Young, Four Seasons Hotels, Goldman Sachs, KPMG, Robert W. Baird & Co., Starbucks and Whole Foods Market. CarMax, based in Schaumburg, and Sherwin-Williams,
located in Effingham, also made the list. In selecting the top employers of 2008, Fortune considered such factors as job growth, pay, turnover, benefits, treatment of women and minorities and culture. To see the full report, visit http:// money.cnn.com/magazines/fortune/ bestcompanies/2008.
Do you know what your employees are downloading? Mark Hudock, a security guard for Hamilton Security & Investigations of O’Fallon, was caught trying to download child pornography onto his laptop while working in the guard shack at the Dynegy power plant. IT Security, Dynegy’s network security firm, detected Hudock’s attempted downloads, which were blocked by a firewall, and reported them to Hamilton. A Dynegy plant manager, along with another Dynegy worker, went to the security shack and confiscated Hudock’s computer. The FBI allegedly found illegal pornographic materials on the laptop and arrested him. Final note: Studies have shown that 70% of Internet porn traffic occurs during the 9-to-5 workday. An aggressive network security system, like the one used by Dynegy, can protect your company from liability for employee Internet abuse. June 2008 • Illinois Employment Law
In the Spotlight
by Richard H. Chapman, Esq., Clark Hill PLC, Chicago
Illinois Human Rights Act amended to be more employee-friendly A
s of Jan. 1, 2008, employees have new rights under the Illinois Human Rights Act. The new amendment permits employees for the first time to bring civil actions in circuit court and have their cases heard by juries. Originally, the Illinois Human Rights Act was a completely administrative, nonjury process for resolving employment discrimination claims. Unlike an ordinary trial, in which the litigants can conduct extensive (and expensive) discovery, the parties could only seek administrative relief. The cases were heard solely by administrative law judges. That’s all changed. Before the amendment, the only judicial forum for employment discrimination claims was federal court. Now employees will be able to have juries hear the evidence and decide employment discrimination cases. The new amendment allows employees the full state litigation toolbox, including depositions and various discovery techniques that other civil litigants have the right to use in Illinois courts.
Choose either option: Commission review or civil court Under the new amendment, when the Illinois Department of Human Rights (IDHR) dismisses charges, it must give complainants notice of their rights to either: • Seek review of the dismissal order before the Illinois Human Rights Commission or • Initiate a civil action in the appropriate civil court and have their cases heard by a jury. Previously, only the IDHR’s chief legal counsel heard requests for review. Here’s how the process now works. Once the IDHR has dismissed a charge, the complainant faces a fork-in-the-road decision. An employee who decides to file a request for review with the commission forfeits the option to have a jury trial in circuit court. An employee has 30 6
Illinois Employment Law • June 2008
days after receiving the IDHR’s notice of dismissal to file a request for commission review. Alternatively, an employee who wants to file a civil action in circuit court must do so within 90 days after receiving the IDHR’s notice of dismissal. Note: What if IDHR determines there is substantial evidence to a charge? The department must notify the parties that the complainant has the right to either request that the IDHR file a complaint with the commission on his or her behalf or initiate a civil action in the appropriate circuit court.
The calendar is critical Employees must begin civil actions within 90 days of receiving notice from the IDHR. If an employee decides to have the IDHR file a complaint with the commission, the individual must make such a request in writing within 14 days of receipt of the IDHR’s notice. If the complainant misses the deadline for asking the IDHR to file the complaint, the complainant may only file a civil action. Everyone involved in the process must keep an eye on the calendar. When the IDHR issues a finding of substantial evidence and attempts conciliation between the parties, that does not stay or extend the time for filing the complaint with the commission or the circuit court. If IDHR does not issue a report of its investigatory findings within 365
days after the charge is filed (or any such longer period agreed to by the parties), complainants have 90 days to file their complaint with the commission or commence a civil action in the appropriate court. The new rights apply solely to charges filed on or after Jan. 1, 2008.
Implications for employers Prepare for the financial stakes to get higher when discrimination claims arise. Plaintiffs’ attorneys will seize this new opportunity to bypass administrative remedies to get their cases heard by juries in state court, where they will hope to win larger recoveries for their clients. The Illinois Human Rights Act provides for successful complainants to recover compensatory damages (including back pay), front pay punitive damages, attorneys’ fees and equitable relief. Historically, the trend always has been for jury verdicts to be larger and less predictable than judgments rendered by administrative agencies. Notably, state court jury verdicts have been significantly larger than those of their federal court counterparts. The costs of defending a claim in state court will be greater than defending one before the IDHR. The discovery process in state court is far more costly because of the new right to use depositions as well as the ability to file more motions. Both of these new tools can quickly drive up the costs of defense.
What should employers do now? • Be sure to have effective policies and procedures in place to prevent harassment, discrimination and retaliation. The best way to prevent costly commission findings or civil lawsuits is to make sure harassment, discrimination and retaliation don’t happen in the first place. • Train your managers and supervisors how to enforce your policies and procedures. Train employees how to use the policies and procedures to report illegal conduct. • Finally, get good legal advice early on, as soon as you learn that harassment, discrimination or retaliation may have occurred. This is more critical now than ever before. Any mistakes you make during the early stages now may become much more expensive.
Nuts & Bolts
Progressive discipline: How to apply a fair and firm policy THE LAW While no federal or state law requires you to create and follow a progressive-discipline policy, courts often come down hard on employers that promise progressive discipline but fail to deliver it. In fact, many employee lawsuits stem from the employee’s perception that he or she didn’t receive a “fair” deal. That’s why the most reliable way to protect your organization from wrongful termination charges is to establish a progressive-discipline system and make sure your supervisors enforce it. WHAT’S NEW An increasing number of lawsuits have been filed in which terminated employees complain that employers have violated their own progressive-discipline policies by firing the employee before working through all the rungs on the progressive-discipline ladder. That’s why your policy should include language allowing you to skip progressive discipline and fire employees right away for particularly egregious behavior. HOW TO COMPLY While it’s usually your right to terminate at-will employees at any time for misconduct or lax performance, a progressive-discipline policy lets you make clear that problems exist and need improvement. How it works: Your policy simply increases the severity of a penalty each time an employee breaks a rule. Typically, a policy progresses from oral warnings to written warnings, suspensions and then termination. That way, employees won’t be surprised when they reach the end and are fired. By taking the surprise out of the firing, you lessen your exposure to a wrongful-termination lawsuit. Before drafting a discipline policy, make sure employees possess clear job descriptions and an employee code of conduct. It’s critical that they know exactly what’s expected of them.
5-step model policy Here are the five standard pieces of progressive discipline: www.theHRSpecialist.com/IL
Is your discipline fair? A 5-question self-exam The perception that management is “against” the workers, once earned, is hard to shake. That’s why it’s vital to ensure that you treat employees fairly during disciplinary investigations. To make sure supervisors (or you) play fairly, ask these five questions before handing down discipline: ■ 1. Does the punishment fit the crime (or is the employee being singled out)? ■ 2. Is the discipline consistent? Have different supervisors used different discipline for similar conduct? ■ 3. Has the discipline been administered after a proper investigation of the facts? Be a neutral fact-finder until you gather all the facts. ■ 4. Is the discipline being taken quickly? A simple investigation that takes weeks could be seen as though your organization is trying to find problems. Inform the employee of the steps you’re going through, as well as when you’ll respond. ■ 5. Is the discipline confidential? Warn everyone involved that speaking about disciplinary investigations or actions is strictly on a need-to-know basis.
1. Oral warning/reprimand. As soon as supervisors perceive performance or behavior problems, they should issue oral reprimands. Ask the worker if any long-term problems or skill deficiencies need correcting. Make sure the supervisor keeps detailed (and dated) notes on the reason for the warning and the response. This step is vital. Don’t assume that managers will remember specifics about disciplinary actions—or even remain employed by your organization—when a complaint makes its way to court. 2. Written warning/reprimand. If the problem persists (or more problems emerge), supervisors should meet with the worker and provide a written warning that details the problem and the steps needed to improve. If possible, ask another person—a managementlevel employee or HR rep—to sit in on the meeting. The written warning should summarize the issues discussed, set a timeline for action and describe in detail the corrective steps agreed upon. Explain the standards that will be used to judge the employee. Also explain the consequences of continued poor performance, including termination. Require employees to sign this form, acknowledging that they’ve received it. Place the document in the employee’s personnel file.
3. Final written warning. If the performance doesn’t improve, deliver a final written warning, possibly including a “last chance agreement.” Show the worker copies of previous warnings. Specify the time period and, again, obtain the employee’s signature on the warning. 4. Termination review. If problems continue, supervisors should notify HR. In general, supervisors shouldn’t hold solo firing authority. However, to preserve supervisors’ exempt status under the Fair Labor Standards Act, they should have significant say in hiring and firing decisions. Some organizations suspend employees while they investigate and decide whether to terminate. Before acting, make sure that your disciplinary measures are consistent with those you’ve taken in other similar situations. If you don’t, a court could say illegal age, sex or race discrimination was the true reason for your actions. Document your actions and reasoning. 5. Termination. If you make the decision to terminate, meet with the employee and deliver a termination letter that states the reasons for dismissal.
Next Nuts & Bolts: Personnel files Coming soon: Attendance policies June 2008 • Illinois Employment Law
by Richard H. Chapman, Esq., Clark Hill PLC, Chicago
‘Training wage’ applies to employees’ first 90 days
Our company spends a lot of time training employees. I understand new minimum-wage law affects how we pay those employees. What will it mean?
The minimum wage in Illinois is $7.50 for employees age 18 and older. But employers also can pay a reduced wage—up to 50 cents per hour less—for employees age 18 and older for their first 90 days of employment. However, this reduced training wage doesn’t apply to occasional or temporary employees who may work 90 days or less. For those employees, you must still pay at least the full minimum wage rate.
Must we grant time off for blood donations?
We have employees who want to donate blood on a regular basis. While we support them, having employees leave work to attend blood drives can be difficult to monitor. Do any guidelines regulate how often and how long we must allow employees to leave work to give blood?
Yes. Illinois law guarantees employees can use up to one hour—or more if authorized by the employer or a collective-bargaining agreement—to donate blood every 56 days, in accordance with appropriate medical standards established by the American Red Cross, America’s Blood Centers, the American Association of Blood Banks or other nationally recognized standards. The state’s Employee Blood Donation Leave Act took effect in 2006. Perhaps, your company could consider establishing some form of scheduling for those employees within the law’s limitations to permit them to do a “good thing” without causing you too much pain.
Employee dealing with daughter’s domestic abuse
One of our employees has an abusive son-in-law. Her daughter and grandchildren constantly call her at work. This is very disruptive and affects her performance. We don’t want to fire her, but we think she would benefit from getting help. What are our options?
You have several options. First, it is critical to know that Illinois’ Victim’s Economic and Security and Safety Act (VESSA) prohibits employers (with at least 50 employees) from discharging an employee (regardless of gender) who is a victim of domestic violence or has a family or household member who is a victim of domestic violence. Nor can you discriminate against such employees for taking a total of up to 12 workweeks of unpaid leave from work during any 12-month period to address the issues arising from domestic or sexual violence. VESSA leave may be taken intermittently or on a reduced work schedule. Employees can take VESSA leave to: 1. Seek medical attention for physical or psychological injuries to the employee or employee’s family or household member 8
Illinois Employment Law • June 2008
2. Obtain victim services 3. Receive psychological or other counseling 4. Participate in safety planning, including temporary or permanent relocation 5. Seek legal assistance. Also, be aware of the law’s notice, certification and confidentiality requirements. When practical, employees must give 48 hours’ notice of their intention to take VESSA leave. And, if an unauthorized absence occurs, employers are prohibited from taking action against the employee if the employee provides certification within a reasonable period after the absence. Certification includes a sworn statement of the employee and documentation from a victim-service organization, attorney, clergy member, medical professional, police or other court record or corroborating evidence. Employers must maintain the confidentiality of all information relating to the VESSA leave. If VESSA doesn’t apply to your organization (i.e., you have fewer than 50 employees), you can offer time off under other policies, such as a vacation or PTO plan. It is always a best practice to offer any HR services and employee assistance programs that are available.
Can we fire worker due to many wage garnishments?
One of our employees is a compulsive shopper who can’t manage his money and now has five different wage-deduction orders entered against him. Complying with these orders takes an incredible amount of time and energy for our payroll and HR staff. If he was a better employee, we might put up with it. Can’t we just terminate him? You can, but only because the employee is, as one court put it, “chronically unable to manage” his financial affairs. But take note: Both Illinois and federal law forbid employers from terminating or suspending employees because their earnings are subject to a deduction order for any one indebtedness. However, if a deduction order is for child support, federal law forbids termination in retaliation for that. No doubt, withholding and paying money to courts or other parties is time consuming. Remember, however, that you can lessen the pain by taking a fee for processing the wage garnishment. You can take the greater of $12 or 2% of the amount required to be deducted by any deduction order or series of deduction orders arising out of the same judgment debt. Or you can take $5 per month for complying with a child-support enforcement order.
Richard H. Chapman, Esq., is a member of the Litigation Practice Group at the Chicago office of Clark Hill PLC. He has more than 24 years of experience as a leading trial lawyer concentrating in business litigation. He can be reached at rchapman@ClarkHill.com or at (312) 985-5900. To submit your question to The Mailbag, e-mail it to HRILeditor@NIBM.net or fax it to (703) 905-8042.
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