Employers and employees in Chicago have questions about their rights and obligations during the coronavirus pandemic.
A recent Chicago Tribune article explains how some laws predating the pandemic will pertain to employers and employees. The Families First Coronavirus Response Act also will be applicable to many employers and workers in Illinois.
In terms of new laws, the Families First Coronavirus Response Act will take effect on April 1, 2020.
At that point, employers in Chicago will need to give employers two weeks of paid sick leave. The paid sick leave requirement applies to employers who cannot work due to COVID-19 symptoms. It also applies to employees who cannot work due to stay-home and quarantine orders. Accordingly, an employee who is considered non-essential can be eligible for two weeks of paid sick leave. However, the amount of paid sick leave has a daily cap. Employees will not receive more than $510 per day under the Families First Coronavirus Response Act. Employers will be compensated for paid sick time on a dollar-per-dollar basis through tax credits. Employers will need to provide paid sick time to furloughed workers, but not to terminated workers.
The Families First Coronavirus Response Act only applies to businesses with fewer than 500 employees.
Yet many Cook County businesses must allow employees to use any paid sick time already accrued, and employees in larger businesses in the City of Chicago may be able to use the sick hours they accrued pursuant to City and County of Cook laws.
Employers and employees should understand that a clear distinction exists between being furloughed and being terminated.
Furloughed employees remain employed but are not working due to lack of work. Although those employees will not work during the furlough period and will not be paid, they keep their job-related benefits. To be clear, furloughed employees still have health insurance provided by the employer. However, terminated workers do not keep their benefits. Accordingly, terminated workers will not have healthcare benefits through their employers. Some similarities exist between furloughed and terminated employees. In many cases, both furloughed and terminated employees can seek unemployment insurance benefits. If an employee is furloughed or terminated due to business closures because of the coronavirus, unemployment insurance is an option. However, if a Chicago employee is fired for misconduct, unemployment insurance benefits will not be possible.
As Chicago employment law attorney Arthur R. Ehrlich underscored, “employees should understand their rights and obligations during this unprecedented time.” As Chicago employment law attorney Jonathan Goldman explained, “both federal and state laws may exist to aid employees with paid sick time and other benefits.”
An Illinois employee recently filed a lawsuit against the City of Danville, according to aWCIA newsreport. The employment discrimination claim also names former city leaders. The employee, a former administrative assistant, alleges discrimination on the basis of race and sex. The city fired the 51-year-old Danville employee, Lisa Robinson, in 2018. Robinson started working for the city in 1994. By the time of her termination, she had worked for the city for more than 20 years. A union arbitrator ordered the city to give her back her job. However, Robinson will still move forward with her discrimination complaint. She recently filed the complaint in federal court.
Robinson’s complaint alleges that the employer denied her access to files on the basis of race and age. She alleges that she faced discrimination in the workplace and that her termination amounted to retaliation. After being subject to workplace discrimination, Robinson reported it to human resources. After making a report, Robinson alleges that her employer retaliated against her before terminating her.
The Illinois Human Rights Act (IHRA) protects employees from discrimination on the basis of race, age, and many other classifications. The IHRA also prohibits retaliation when an employee exercises his or her IHRA rights. In addition to protections under state law, many federal laws prohibit different forms of employment discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, sex, religion, and other categories. The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age. It provides specific protections for employees and job applications aged 40 and older. Both federal laws also prohibit retaliation.
According toChicago employment discrimination lawyer Arthur R. Ehrlich, “the IHRA provides protections beyond those provided by federal law.” As Ehrlich explained, “whether an employee files a state or federal discrimination claim depends on many factors, including coverage.” For example, the IHRA expressly prohibits discrimination on the basis of sexual orientation, while federal law may not apply. The US Supreme Court is now considering that issue. For discrimination because of race or age, an employee is eligible to file a state or federal law claim. Robinson filed a federal claim, specifically citing the ADEA.
In addition to damages and attorney’s fees, Robinson wants the city to institute new policies. Specifically, she wants new policies to prohibit discrimination on the basis of race and age. Robinson also wants the city to appoint an independent monitor to implement and oversee those policies.
The Workplace Transparency Act (WTA) took effect in Illinois just two months ago across the state. Employers and employees alike should understand their rights and obligations under the new law. The Illinois General Assembly passed the law last June in connection with other laws related to sexual harassment. The law is similar to other laws passed in New York and California in response to the #MeToo movement. Legislators want to prevent workplace situations in which employees were not allowed to discuss their harassment allegations once their case was settled. Given that the WTA is now in effect, employment law changes will need to occur for new hires and for exiting employees.
Under the new law, employers who are making new hires need to understand the limits of non-disclosure agreements. Employers cannot create employment agreements that include clauses or covenants designed to prevent an employee from disclosing harassment at work. More significantly, employers cannot include clauses or covenants that have the effect of preventing an employee from making disclosures. To be clear, employers do not have to intend to prevent an employee from reporting discrimination with a non-disclosure agreement. However, if an agreement or clause has that effect, it is unlawful under the WTC. Accordingly, the WTC aims to support current or former employees who want to come forward with discrimination or harassment claims. The enactment of the WTC coincides with greater employee protections under the Illinois Human Rights Act (IHRA).
The WTC takes additional steps beyond prohibiting certain types of agreements, clauses, and covenants in employment contracts. Indeed, it also prohibits employers from compelling arbitration for discrimination issues and other particular disputes. To be sure, the WTC says that mandatory arbitration may not be compelled in Illinois. In addition, the WTC provides protections for employees presented with settlement agreements. To ensure that employees can properly consider a settlement offer, the WTC requires specific time windows for acceptance and revocation. All employees must have 21 days to consider a settlement agreement. In addition, all employees must have 7 days to revoke a settlement agreement after signing it.
According to Chicago employment discrimination attorney Jonathan C. Goldman, “employers and employees need to be clear about new rights and obligations under the WTA.” As underscored, “certain types of non-disclosure agreements are not appropriate, and settlement agreements must have particular time windows.” Non-disclosure agreements, non-disparagement provisions, and settlement agreements must be analyzed carefully under the WTC. Indeed, many common employment agreement provisions may not be lawful if they could limit or prevent discrimination allegations.
Corporations in the free marketplace constantly look for ways to secure advantages over their competitors. As the global economy becomes more integrated, free market competition has led corporations to expand beyond their borders.
As part of this trend, an increasing number of American companies are establishing an international presence through mergers and acquisitions.
Whether the goal is to benefit from cheap labor?
Gain access to talent.
Gain access to new markets.
Companies have to navigate international laws in a variety of areas.
An area of the law that is becoming growingly relevant to globalizing companies is employment law. Title VII of the Civil Rights Act of 1964 (Title VII) is generally seen among most American employment law practitioners as the most fundamental transformation of employees’ rights in the United States in the twentieth century.
7 Title VII prohibits discrimination in the workplace on the basis of race, color, religion, sex, and national origin.
8 Since its inception over fifty years ago; Title VII has been amended by the United States Congress a number of times; and interpreted by the courts hundreds of times, in ways that have changed its reach and applicability.
As global commerce continues to intersect with employment law; American courts growingly find themselves in the position of having to decide the global reach of Title VII; and its capacity to protect employees’ rights beyond American borders.
As this article will explain; an American parent corporation may be held liable for the actions of its foreign subsidiary under Title VII if the plaintiff is a U.S. citizen and the American parent controls the foreign subsidiary. The article begins with a discussion of the extraterritoriality of Title VII prior to 1991 through an analysis of the text of the statute and judicial interpretations. It will then analyze the changes made to the statute in 1991; to expand its applicability beyond U.S. borders and the courts’ application of the revised statute to scenarios involving international plaintiffs. The article will conclude by offering a few practice pointers for plaintiffs seeking to enforce their rights outside of the United States; U.S. corporations and their subsidiaries that wish to limit their liability under Title VII; and courts that have to grapple with threshold jurisdictional issues in international Title VII cases.
Goldman & Ehrlich is a Chicago employment law firm which concentrates on employment litigation and employment discrimination. We represent private employees. As well as, Federal, State, County and Municipal employees. Along with small businesses in Chicago, the surrounding counties and southwestern Michigan. This includes all actions alleging violations of federal and state laws. What sets our Chicago employment lawyers apart is our vast experience and continued practice on both the plaintiff and defendant sides of employment law cases. We have the insight to anticipate the claims. And importantly, we can analyze the tactics from your opponent building your case to withstand arguments against you.
To effectively resolve your employment issues and take preventative action against future claims, call Goldman & Ehrlich at 312.332.6733 today or contact our office online.
Arthur R. Ehrlich will be speaking at the 37th Annual Federal Sector Labor Relations & Labor Law Conference on September 19, 2019, being held at Chicago-Kent College of Law. Join top government officials and policymakers, world-class management-side attorneys and union representatives, and leading academics for a focused day of learning about the future of the federal workplace and workforce. Register Now.
Mr. Ehrlich will be speaking on the Practical Aspects of Discovery in an Administrative Forum, along with two government attorneys and an Administrative Judge for the Equal Employment Opportunity Commission. Mr. Ehrlichs’ Practical Aspects of Discovery in an Administrative Forum will highlight:
Areas of Discovery
Factors To Consider For Comparatives
Other Complaints Against The Same A.D.O.
Input And Bias By Recommending Official
Good Faith or Sham Investigation
Arthur R Ehrlich, partner with the Chicago law firm of Goldman & Ehrlich, has been representing federal employees for over 30 years in employment law cases, including discrimination and termination hearings. All CLE Training offered by Mr. Ehrlich provides the nationally-recognized guidance required to put complex concepts into practice.
Goldman & Ehrlich is a Chicago employment law firm which concentrates on employment litigation and employment discrimination. They represent private employees, Federal, State, County and Municipal employees and small businesses in Chicago, the surrounding counties and southwestern Michigan in actions alleging violations of federal and state laws regarding:
For more than 30 years, our partner attorneys have effectively represented and counseled employees and small businesses in actions for wrongful discharge and claims alleging violations of Title VII, ADA, ADEA, FMLA, Sarbanes Oxley, USERRA and the Illinois Human Rights Act, as well as various common law actions.
Wal-Mart Stores East, LP, which operates an outlet in Northwest Washington, agreed to pay $100,000 and provide other relief to settle allegations it discriminated against two deaf employee who applied for jobs.
According to the Equal Employment Opportunity Commission, Walmart refused to provide accommodations, such as closed-captioned training videos and sign language interpreters, to two hearing-impaired applicants. In addition to the money, Wal-Mart Stores East, L.P. agreed to revise its employee manual and submit to court supervision. These are standard provisions in EEOC settlements. “This settlement should encourage all employers to provide reasonable accommodations that allow equal access for deaf and hard-of-hearing employees and applicants to engage fully in the workplace,” said Acting Washington Field Office District Director Mindy Weinstein.
Earlier this year, Safeway and Blue Cross/Blue Shield of Texas each paid $75,000 to settle similar allegations. In each instance, the employer failed to provide accommodations not for current employees, but for job applicants. These three cases clearly indicate that the EEOC is aggressively pursuing these matters. So, if you are an employer, now is a very good time to review the accommodations you provide job applicants. The Civil Rights Act of 1964 does not apply just to hearing impaired people. Other protected classes include:
Sexual orientation, a category which probably includes gender identity,
Finally, an employers application process, such as filling out forms and taking tests, could be seen as discriminatory for employees with disabilities if they are not offered accommodations that give them an equal opportunity to apply for a position.
Excluding certain applicants because of their national origin or race is another example of disparate treatment. Refusing to provide a translator may be discriminatory. These cases raise another issue as well, such as what is considered to be a reasonable accommodation? The law requires that the employer provide an accommodation that is reasonable under the circumstances. This may require an interactive process where the employer and employee discuss what accommodations are needed and what would be reasonable under the facts. If a disabled person’s request is reasonable, the employer is generally required to provide that request, absent compelling reasons. If the employer must establish that the request is too expensive in proportion to its profits, or would cause undue hardship to its operations
Finally, the Civil Rights Act does not just apply to current employees.
It applies to potential employees as well, in addition to former employees who were terminated when they were not provided with a reasonable accommodation that would have enabled them to perform their job. All these people are entitled to the same accommodations under the law.
For the first time since 2016, Equal Employment Opportunity Commissioner Victoria Lipnic addressed the annual Industry Liaison Group meeting, which was held in Wisconsin this year.
Commissioner Lipnic addressed two pressing employment law issues: pay equity and age discrimination. Specifically, Lipnic noted the looming September 30 deadline to comply with the EEO-1. Compliance requires most companies to submit payroll data dating back to 2017. Lipnic noted that such collection “is not in any way easy,” but that is “what a federal judge has ordered.” Lipnic also observed that most Millenials were just a few years away from Age Discrimination Act coverage.
On a final note, during the subsequent Q&A session, Lipnic told federal contractors they should “lead the way in recruiting for populations you traditionally have not gone to before.”
Companies may not intentionally set out to pay women less than men, but more often than not, there is a significant pay gap. Even if there is no “smoking gun” evidence of discrimination, a legal remedy may be available.
Some companies over-rely on salary history information. They believe there is nothing wrong with using a candidate’s past salary history to set a current salary level. But many women were underpaid due to their gender, whether intentionally or not, in their prior jobs. As a result, their salaries will continue to lag behind their male counterparts, and the disparity increases over time. This is why many states are now making it illegal for an employer to ask an employee about an their prior salary history.
Other companies use job history to set salary, and this calculation could adversely affect women as well. For example, blue-collar workers, like miners, generally earn more than white-collar nonprofessional workers, like clerks, secretaries, or administrative assistants. Blue-collar workers are often male, while many white-collar nonprofessionals are female.
Pay discrimination victims are generally entitled to back pay, reimbursement of legal fees, lost benefits, and other damages, including perhaps damages for emotional distress if they prevail at trial.
Age discrimination cases are sometimes harder to win today than they were in the 1990s. The Supreme Court has ruled that age must be the sole factor, as opposed to only a motivating factor, in the action taken against the employee. For example, the corporation’s decision to terminate or demote an older employee may have been based partly due to age but also based on a performance issue, even if the performance issue was not significant. Under these facts, assuming there was a real, as opposed to a fabricated performance issue, the older worker’s dismissal may not have violated the Age Discrimination Act.
For this reason, the EEOC may not pursue age discrimination claims as often as other actions. But an assertive attorney may still be willing to pursue these claims on the employee’s behalf.
Northern Star (Pogo) LLC, an Alaska-based gold mining company, agreed to pay $690,000 and provide other relief to resolve a discrimination and retaliation action.
According to the Equal Employment Opportunity Commission, the company refused to promote a woman and instead promoted other, less-qualified male candidates. When Hanna Hurst applied for the promotion and then complained, Northern Star created additional qualifications for her to complete. But the company exempted male employees from these tests. In addition to paying money, Northern Star must adhere to a long-term consent agreement that will insure equal opportunities for promotion for females.
“Gender bias continues to be a problem in today’s workplace, certainly no less in those industries traditionally dominated by men,” said EEOC Seattle Field Director Nancy Sienko. “We commend Northern Star as the new successor company for demonstrating its commitment to see such discrimination doesn’t continue under its leadership.”
Substantive sexual harassment cases can sometimes be complex, they cautioned. There are two types of sexual harassment claims in Illinois:
Quid Pro Quo: It is illegal to condition any employment-related decision on any sexual favor. This happens more often than many people believe but is often done in a subtle manner. A female employee should be careful when her boss asks if they can discuss some matter at lunch or dinner when no other employees are present.”
Hostile Environment: This occurs when there is a severe and pervasive pattern of unwelcome sexual or gender comments or acts. A single joke or off-color remark does not constitutes sexual harassment. The conduct must be frequent enough to adversely affect a reasonable person or make it difficult for the employee to perform her normal job duties.
A single-episode of a sexual assault or an extremely aggressive attempt at a sexual overture may be sufficient.
Repeated touching to the point where it is clearly not accidental may also be enough, especially when inappropriate jokes are common. The employer’s failure to investigate a complaint or take action to stop harassment by co-workers will strengthen a sexual harassment case. A failure to conduct an adequate and diligent investigations happens all too frequently, especially in mining, construction, and other male-dominated industries. Post-complaint investigations must be done immediately, and should be comprehensive, and transparent.
Statistically, the EEOC usually handles more retaliation claims than anything else. This includes retaliation for making a complaint for sexual harassment.
Retaliation occurs when an employer punishes an employee who participated in a protected activity. Protected activities include the following:
Filing a complaint or serving as a witness in an employment discrimination claim,
Lodging an informal discrimination complaint,
Resisting sexual advances or other discriminatory conduct,
Intervening to help others in these situations, and
Refusing to follow discriminatory orders.
Even if the underlying complaint of discrimination does not prove that the law was violated, an employee is still protected from retaliation as long as the complaint was made in good faith. Contact Goldman & Ehrlich to discuss your discrimination case today.
Chicago Mayoral Candidate was targeted recently over her support of anti-discrimination legislation introduced in Congress to protect members of the LGBTQ community against employment discrimination.
According to a March 19, 2019 NBC News report, a distribution of homophobic flyers across Chicago’s South Side portrayed mayoral candidate Lori Lightfoot as supporting a ‘Gay Equality Act’ in Illinois. While the front side of the flyers design looked as if it was being distributed by Lightfoot’s campaign election committee, the other side claimed, “All Contracts, Jobs and employment newly assigned exclusively to gay people!”
While there is no such thing as a ‘Gay Equality Act’, the flyer is likely in reference to a federal bill introduced by Democrats the previous week.
The Equality Act would amend existing civil rights legislation to ban discrimination in employment, housing, education, and other areas on the basis of gender or sexual orientation. Lightfoot was likely targeted as she is openly homosexual. Both she and her opponent in the mayor’s race, fellow Democrat Toni Preckwinkle, denounced the flyers, as did other community leaders.
“Targeting this particular candidate in this manner is a clear illustration as to why protections against employment discrimination are so important,” says attorney Jonathan C. Goldman of the Chicago employment law firm Goldman & Ehrlich.
There are several federal laws, including the Civil Rights Act of 1964, the Fair Housing Act, and the Equal Credit Opportunity Act. Meant to protect people against discrimination based on race, color, religion, sex, or national origin. However, the Equality Act goes a step further in specifically addressing unfair actions taken against the LGBTQ community.
According to research by the American Center for Progress, close to half of all gay people report experiencing some form of harassment or discrimination in the workplace.
Among transgender individuals, an alarming 90 percent report discrimination. “Screening applicants, withholding jobs and promotions, or engaging in other forms of discrimination and harassment against members of the LGBTQ community is against the law,” says Goldman. “While tougher protections are still needed, when it occurs employers can be held accountable.” Contact Goldman & Ehrlich today to discuss your case.
EEOC Announces Major Pay Discrimination Settlement
Multistate diesel engine manufacturer Cummins, Inc. agreed to pay $77,500 to settle a pay discrimination suit out of court. According to the Equal Employment Opportunity Commission, a Nashville worker received less than her male co-workers. Cummins officials reviewed the woman’s salary and concluded that there was a gender gap. But they refused to adjust the woman’s pay. S part of the settlement, Cummins, which also operates in Illinois, agreed to two years of court supervision.
“Employers should provide men and women in the same workplace with equal pay for equal work” because it’s not only fair, “it’s the law,” proclaimed EEOC Memphis Regional Attorney Faye Williams. “Technological and legal advances have made equal pay cases easier than ever to win,” remarked Chicago employment law attorney Jonathan Goldman. “But the EEOC still does not take on this issue very frequently.”
The Equal Opportunity Commission, or a similar state agency, usually has first crack at unequal pay and other employment discrimination cases, he explained.
First file an unequal pay claim with the EEOC before filing in court in order to fully exhaust administrative remedies. There are occasions when the EEOC will take these claims to court, but those occasions are rare. Once the EEOC concluded its investigation, it will issue a Right to Sue letter, which gives the employee 90 days to file in court. When attorneys take these cases, technology often comes into play. Until fairly recently, large companies could bury claimants in papers during discovery. There may be a smoking gun in there somewhere, but it was almost impossible to find. Now, attorneys can feed documents into high-speed scanners, enter search terms, and easily view relevant documents.
If you bring an unequal pay claim in Chicago, the law is on your side.
The Windy City recently passed an ordinance which bans salary history inquiries. That issue may seem unrelated to pay discrimination, but there’s actually a very close link. When they start their careers, many women accept lower wages than their male counterparts. The pay gap gets even larger over time. A woman’s salary may increase, but not as much as a man’s. So, in an unequal pay case, it may not be necessary to look beyond the initial interview and resume requirements. If there is anything illegal, substantial compensation may be available.
That compensation generally includes both back pay, and will require future pay adjustments to match male employees performing the same work. These lost wages are from the date of employment to the current date. A judge will award a reasonable amount of money that the claimant would have earned had she stayed at that job and earned an equal wage. Contact the lawyers at Goldman & Ehrlich to discuss your case.
Goldman & Ehrlich is located in Chicago, IL and serves clients in and around Chicago, Cook County, Lake County, DuPage County, Will County, Kane County, and McHenry County.
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