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Protecting Your Business from Wrongful Termination Action
Like many states, Illinois is an “at-will” employment state. In simple terms, at-will means that, unless there is a specific agreement in place, employment may be terminated by either the employer or employee at any time, without advance notice, and for almost any reason or no reason at all. Employment contracts, employee handbooks, and verbal promises may create exceptions to an at-will arrangement, and situations may still arise in which an employee was wrongfully terminated.
According to Illinois law, it is illegal to fire an employee on the basis of certain protected characteristics. Among others, such characteristics include race, religion, gender, nationality, and disability. In order to be considered a wrongful termination, however, the employee must be completely terminated from the company. Demotions or pay decreases based on illegal discrimination are not considered under Illinois labor laws. Instead, such cases may be investigated by the Illinois Department of Human Rights.
Tips for Avoiding Employee Lawsuits
A business owner never hires an employee expecting to be sued. Employment agreements are based on trust that both the employer and employee will act in accordance with the best interest of the company while adhering to all applicable laws. Over time, however, even the best employment-based relationships can break down, and in an ever-increasingly litigious environment, it is all too common for a disgruntled worker to file a lawsuit against the business owner.
Of course, many such lawsuits may be groundless to the point of frivolity, but they still require time, attention, and money to defend. While there may be no way to prevent frivolous litigation, there are some things a business owner can do to make sure neither employees nor the government have legitimate grounds upon which to file suit.
Are My Employees Exempt or Nonexempt?
While many employees may not realize its impact, the Fair Labor Standards Act (FLSA) applies to most jobs in America, mandating employers to act in accordance with the law’s requirements for both minimum wage and overtime pay. A very small percentage of jobs fall completely outside the purview of the FLSA and those under within its scope are divided into two classifications: exempt and nonexempt. It is extremely important for employers to know the difference so as to remain in compliance with the law.
Nonexempt
In most companies, the average worker is “nonexempt” meaning the FLSA standards generally apply to that individual. The employee must be paid at least the federal minimum wage for every hour he works and at least time and a half as overtime pay for any hours above 40 per workweek. Nonexempt employees typically comprise most of a company’s workforce and include general laborers, clerks, production or line workers, customer service representatives, and “inside” sales staff.
FMLA and Employer Notification Requirements
Most American workers are aware of the existence of the Family Medical Act (FMLA). While they may not be familiar with the specific details, they know that FMLA provides for employees to take leave from their job for family and medical reasons. The details, of course, are extremely important in determining whether an employee’s leave qualifies under the FMLA. Perhaps more important, though, is first establishing whether the employer is even subject to the law’s requirements.
Covered Employers
It may come as a surprise that the FMLA does not apply to all business owners or even all employers. It is only applicable to employers who meet the act’s definition of a “covered employer.” Under the FMLA this refers to:
Women Face More Challenges Starting Businesses Than Men
In the wake of the worst economic downturn in two generations, the American economy is beginning to revive. One indication of a healthy national economy is the number of businesses being started, as revealed through the number of entrepreneurs applying for loans. While it is not an easy time to get funding to start a business, some people may have a natural lagniappe for such a venture: men.
A Congressional report released in July revealed that though women own approximately one-third of small businesses in America, they only “account for less than 5 percent of dollars borrowed through traditional small business loans.”
This is not the only indicator that women are getting less financial help than their male counterparts: the report also showed that women are more frequently turned down for private loans, and those who do secure capital “generally do so under much less favorable terms,” reports the Washington Post.
Voters in Illinois to Have Say in Raising Minimum Wage
In recent years, the debate surrounding raising the minimum wage is one that has been raging at both the federal and state levels. And in late June, the Chicago Defender reported that Governor Pat Quinn signed a House Bill allowing voters to “make their voices heard on an important issue that would benefit hundreds of thousands of working people across Illinois.”
Supporters of raising the minimum wage claim that it will help American families who are strapped for cash and are having difficulty making ends meet. However, critics of the law claim that it will strap small businesses with unreasonable expectations and stagnate the job market and economic growth.
Independent Contractors vs. Employees in Illinois
To be one’s own boss is a deep thread in the narrative of the American dream. And in recent years, employers — especially in major cities like Chicago —have been utilizing independent contractors. And unlike employees, these employers have not been providing independent contractors with the same benefits as salaried workers.
According to Business & Legal Resources, Illinois state law states that an employer must adhere to strict requirements regarding unemployment tax, workers’ compensation, and wage laws for employees. Yet these restrictions do not necessarily extend to independent contractors.
However, in July 2013, Governor Pat Quinn signed the Employee Classification Act into law in an attempt to bring independent contractors, specifically construction workers, some of the protections offered to salaried workers.The Employee Classification Act "establishes specific criteria to determine if an individual performing services for a construction contractor is an employee or an independent contractor." The law went into effect in January.
Are Unpaid Internships Legal?
As summer approaches, various companies will begin to consider the possibility of offering internships to college students and recent graduates in order to bolster their workforce.
In some cases, companies will choose to allow the work experience, and a letter of recommendation, to act as fair pay for the intern’s time. However, several recent employment lawsuits across the country have brought about questioning in regards to whether or not unpaid internships are legal.
One of the most recent cases involved Hearst Corp., a New York firm that was facing a class-action lawsuit from a group of 3,000 unpaid interns. However, the court recently ruled that the group could not continue their class-action suit. Instead, they will have to file individual cases against the company. And while many interns feel this ruling is a major setback for intern employment rights, it does offer some legal protection for companies who choose to continue offering low pay or unpaid internships. Today, internships have become a near requirement for those college students hoping to land employment with a good firm after graduation. Unpaid internships are legal; however, if your company is concerned over potential lawsuits, there are several things you can do. To begin, consider offering recent graduates a competitive internship, for example, with the winner being offered a job at the end of their term. Also, establish a relationship with the local college that will allow interns to earn credit for the time they spend working. Ensuring that interns receive valuable job training and are treated well will also go a long way towards protecting your company.If your business is considering offering an internship this summer or in the future, speak with an attorney who understands employment law. Contact the Miller Law Firm, P.C. today for a consultation. We can help you set up your internship program in a legal manner, and thus protect you from costly legal action later.
Understanding Wage Garnishment in Illinois
According to CreditCards.com, wage garnishment is a practice meant to cause a dent in a debtor’s confidence and income by taking a percentage from the individual’s paycheck each month. Credit card companies, in an attempt to recover unpaid credit card debt or dues, may engage in wage garnishing by taking monies out of an employee's paycheck. David Cherner, the former director of state government affairs for the Association of Credit and Collection Professionals International, told CreditCards.com that in most states, wage garnishment can only be initiated by a court order.
In Illinois, according to the Illinois State Legislature, wage garnishment may only be initiated if a debt is owed for more than 40 days and the individual has continued to default even after a notice has been served and warns the debtor that wage garnishment will ensue. The actual practice cannot begin in less than 20 days before this notice of intention has been served to the employee.
Providing Adequate Provision for Nursing Mothers: FLSA Section 7(r)
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