- Law Firm Procedures
- Employment Laws
Do you charge consultation fees?
Yes. We are happy to discuss your matter by phone first to determine if it merits a more in-depth meeting at our offices. We can usually tell within 10 minutes of a phone call whether that is the case, or conversely, whether you need not come in for a consultation, because we likely cannot help you (ie. the matter is time barred due to the statute of limitations, or it is clear you may not have a legally sufficient claim).
Our in-office consultations usually last about an hour, and up to two hours. Our fees for a consultation vary, but we generally charge our standard hourly rate, for one hour. Before you make an appointment, we tell you upfront what our consultation fee will be.
At the conclusion of a consultation, we strategize to provide you with as many options as possible to address your matter, and advise you of our proposed fees for representation. In the end, you need to feel comfortable that you have found the right attorneys to handle your matter.
Do you take cases on contingency?
Generally, no, with some exceptions.
Each client's case and situation is unique. Employment law is much different than personal injury or worker's compensation law, where nearly all representation on behalf of an individual occurs on a contingency basis (meaning the attorney gets paid from the percentage of the proceeds if he wins or settles your case).
From time to time, we will accept employment contingency cases, depending on the type of case it is, our present caseload, and the circumstances of the individual. However, we can only make such an assessment after an individual comes in for an in-office consultation, to allow us to fully review his or her situation.
What is the minimum wage?
States can set the minimum wage for their state higher, but not lower, than the federal minimum wage. The federal minimum wage for covered nonexempt employees under the Fair Labor Standards Act ("FLSA"), is currently $7.25 per hour. In Illinois, the state minimum wage currently is $8.25.
What is the minimum wage for workers who receive tips?
In Illinois, the minimum wage for tipped employees is currently $4.95 per hour. Tipped employees must be paid equal to the regular minimum wage, but employers can get credit for the employee's tips in an amount up to 40% of the wage.
When must overtime be paid?
For covered, nonexempt employees, the FLSA requires overtime pay of one and one-half times an employee's regular rate of pay for all hours after 40 hours of work in a workweek. Some exceptions may apply under special circumstances to police officers and fire fighters employed by public agencies, and to employees of hospitals and nursing homes. The legal consequences of misclassifying employees as salaried, and thus not paying them overtime for work over 40 hours in a workweek, can be significant.
Which employees are exempt?
To qualify as exempt, an employee must be paid a salary (as opposed to hourly) and must perform certain kinds of duties. Generally, these duties are executive, administrative or professional. If you are uncertain about your or your company's employees' status, as to whether one is exempt or not, contact us.
How many hours per day or per week can an employee work?
The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.
In Illinois, employees must generally receive a minimum of 24 consecutive hours of rest in each calendar week. However, there are exceptions, including an exception for part-time employees who work 20 or fewer hours in a calendar week.
When must breaks and meal periods be given?
The FLSA does not require breaks or meal periods be given to workers.
In Illinois, employees must be given a meal period of 20 minutes for every seven and one-half hour shift beginning no longer than five hours after the start of the shift.
Are pay stubs required?
The FLSA requires that employers keep accurate records of hours worked and wages paid to employees. However, the FLSA does not require an employer to provide employees with pay stubs.
Where can I seek legal action for violations of the wage laws?
Depending on the type of wage law violated, you can generally file a claim with the U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division, and/or the Illinois Department of Labor, Wage and Hour Division. This is instead of, or in addition to, legal remedies you can pursue in a lawsuit. You can, of course, always contact us for assistance with such matters.
What is the law regarding Family and Medical Leave?
The Family and Medical Leave Act ("FMLA"), a federal law, allows certain employees up to twelve weeks of unpaid, job-protected leave per year. The FMLA is designed to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons.
What situations are covered by the FMLA?
The FMLA covers the following situations:
- leave for the birth and care of the newborn child of the employee;
- leave for placement with the employee of a child for adoption or foster care;
- leave to care for an immediate family member with a serious health condition; or
- leave to take medical leave when the employee is unable to work because of the employee's serious health condition
Who is considered an "immediate family member"?
An employee's spouse, children, and parents are immediate family members for purposes of FMLA. "Parent" does not include a parent "in-law". "Children" do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission ("EEOC") under the Americans With Disabilities Act "(ADA").
Which employers are covered by the FMLA?
Only employers with 50 or more employees at a work site, or within 75 miles, are covered by the FMLA.
Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked at least 1,250 hours over the previous 12 months.
Do the 1,250 hours include paid leave time or other absences from work?
No, it only includes those hours actually worked for the employer.
Do I have to give my employer my medical records for leave due to a serious health condition?
You don't have to provide medical records. An employer may, however, reasonably request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists or existed.
What is employment discrimination?
Employment discrimination generally occurs when an employee is treated differently due to the employee's membership in a protected category or class. To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs in that protected class. If the action is intentionally discriminatory, it is called disparate treatment. If the operation of an employer's system, such as its hiring process, had an unintentionally discriminatory effect on a protected class, it is said to have a disparate impact.
What is Title VII?
Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex or national origin.
Who does Title VII cover?
Title VII generally covers employers with 15 or more employees. Title VII applies to all employers, potential employers, unions, employment agencies and joint labor-management training committees. Title VII also applies to state and local governments, governmental agencies, and political subdivisions. Religious organizations are excluded from discrimination based on religion.
What is the Age Discrimination in Employment Act (ADEA)?
The ADEA prohibits an employer, employment agency or labor union from discriminating in employment against anyone because of his or her age. This includes discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment.
Who is covered by the ADEA?
The ADEA applies only to persons who are 40 years of age and older. Using age is not illegal where age is a bona fide occupational qualification reasonably necessary to the normal operation of the job. Also, state and local governments may use age as a basis for hiring and retiring law enforcement officers, prison guards and firefighters.
What is the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act (ADA) prohibits discrimination against qualified disabled individuals in all employment practices, including job application procedures, hiring, promotion and advancement, training, discharge, and other terms, conditions and privileges of employment. The ADA prohibits employment discrimination on the basis of a disability in all programs, activities and services provided for or operated by state and local governments.
What employers are covered by the ADA?
The ADA applies to private employers, state and local governments, employment agencies and labor unions. Employers are covered if they have 15 or more employees.
What employees are covered by the ADA?
The Americans with Disabilities Act (ADA) applies to disabled individuals in employment, and includes applicants for employment. The Act broadly defines a disability as a physical or mental impairment that substantially limits one or more major life activities. The definition also includes anyone who has a "record of" such an impairment or is "regarded as" having such an impairment.
Where can I file charges for violations of Title VII, the ADEA, the ADA, and/or the FMLA?
The Equal Employment Opportunity Commission (EEOC) administers and enforces Title VII, the ADEA and the ADA. Generally, complaints must be filed with the EEOC within 180 days of the occurrence of the discriminatory act. However, in Illinois, complaints can be filed with the EEOC within 300 days of the discriminatory act.
In Illinois, a complainant can also file charges at the Illinois Department of Human Rights ("IDHR"), which in many instances, will have the affect of also having filed the claim at the EEOC. All the types of discrimination prohibited under Title VII, the ADEA, and the ADA are covered under the Illinois Human Rights Act ("IHRA"), the Illinois law prohibiting discrimination in the workplace. More types of discrimination are prohibited under the IHRA than under federal law. Complaints must be filed with the IDHR within 180 days of the discriminatory act.
Claims alleging violations of the FMLA can be filed with the US Dept. of Labor, Employment Standards Administration, Wage & Hour Division.
Timely filing a claim with the EEOC and/or IDHR is a prerequisite to filing a lawsuit in any Illinois court. Contact us if you have questions, or seek representation in filing a claim.
What is sexual harassment?
Sexual harassment is a form of sexual discrimination when there are unwelcome sexual advances, requests for sexual favors, and/or other undesired verbal or physical conduct of a sexual nature, and which is made a part of one's employment. Generally, one of the following must apply:
- submission to such conduct is overtly expressed or subtly suggested; or
- submission or rejection of the conduct is used for making employment decisions; or
- the conduct substantially interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment.
What is a "hostile work environment"?
A hostile work environment occurs when there is behavior, such as unwelcome comments or conduct, based on sex, race or other legally protected characteristics, that unreasonably interferes with an employee's work performance or creates an intimidating, hostile or offensive work environment. The harassment must be severe or pervasive. Anyone in the workplace can be a harasser – a manager, co-worker, even a non-employee, such as a customer. The victim can be anyone affected by the conduct, not just the individual at whom such offensive conduct is directed.
In a sexual harassment context, conduct that can result in a hostile work environment on the basis of sex may include repeated requests for dates, grabbing or touching an employee in private areas, or making offensive sexual comments in the workplace. Such conduct may create a sexually hostile or abusive work environment.
What should you do if you have been sexually harassed at work, or an employee has reported an incident(s) of sexual harassment to you?
If you have been subjected to sexual harassment by a co-worker, or even a non-employee with a connection to your workplace, you should report the incident(s) to a supervisor immediately. Often, an employer's sexual harassment policy will be laid out in an employee handbook, or posted among other items on a board with other mandatory employee postings. However, even if this is not the case, you should still immediately report the incident(s) to your supervisor, unless your supervisor is the harasser, in which case you should report it to another higher level supervisor. You should also consider contacting us.
All employers should have an employee handbook in place which contains a section on its sexual harassment policy, and to whom such allegations should be reported. Failure to have such a written and disbursed policy in place can doom an employer in a sexual harassment lawsuit. Should an employer have such a policy, it should immediately begin discreetly but thoroughly investigating the allegation. Contact us if you or your company need assistance with a sexual harassment allegation.
Does an employer have to pay severance pay when terminating an employee?
No, unless the employee and employer had an employment contract that specifically indicated severance pay would be paid under such circumstances, or the employer prematurely terminated an employee's work contract that was still in effect. In Illinois, employers may generally terminate employees with or without good reason.
There are circumstances, however, when it makes sense to offer employees severance pay, most often for security against future litigation by a disgruntled employee.
Employees should wisely consider severance offers, and consult with an attorney to determine whether an offer is reasonable under the circumstances, and what rights they may or will lose if they accept such severance.
Under certain circumstances, an employer's failure to include key language in such an agreement can invalidate the entire agreement, even if the employer has already paid the ex-employee under the terms of the agreement. Our office has drafted and reviewed countless severance agreements, and can assist your company in drafting a solid and enforceable severance agreement, should circumstances merit it. Contact us if your company is considering presenting a departing employee with a severance agreement, or you have been presented a severance agreement to consider.
Am I eligible for unemployment compensation after quitting or being fired by my employer?
Generally, employees are not eligible for unemployment compensation benefits if they quit, unless there was good cause attributable to the employer. Employees also will not be eligible for benefits if they were terminated for misconduct, or for violating a reasonable work rule or regulation. Otherwise, employees may be eligible for benefits, based on an individual assessment of their circumstances.
Do I need a lawyer to file, or defend against, an unemployment compensation claim?
The Illinois Department of Employment Security ("IDES"), which administers the unemployment compensation program, allows discharged employees to file applications for benefits online, or at offices throughout the state of Illinois. Employees who are denied benefits after completing their application may appeal in writing. If a former employee loses at that stage, they may appeal to have their case heard before an Administrative Law Judge ("ALJ") (known also as a "Referee"), who will conduct a telephonic hearing, listening to testimony, and reviewing evidence from both sides, to determine if a former employee should be awarded benefits.
Likewise, employers can protest a claimant's eligibility or whether the employer should be the last chargeable employer for benefit purposes, after the ex-employee files a claim. An employer can appeal an unfavorable decision by the IDES to an ALJ for a telephonic hearing.
We have represented numerous employers and ex-employees in telephonic hearings before Administrative Law Judge, with a strong record of success. Contact us if you have an unemployment compensation matter you would like to appeal to, or have pending before, an ALJ.