Tag: labor law

UPDATE 2014: New and/or Changes to Illinois Labor Laws

Below are highlights of certain federal law developments occurring in Illinois that will affect employers in 2014.  Please make certain that you are in compliance.

  • Workplace Violence Prevention: Effective January 1, 2014, employers with five or more employees will be permitted to take proactive steps to protect employees from workplace violence, harassment, and stalking. Employers will be able to apply for an order of protection against disgruntled workers who have made a documented threat against the business or another employee. Employers are required to provide an affidavit that there is a credible threat of violence against the workplace or an employee to apply for an order of protection.
  • Protection of Social Media Accounts: Effective January 1, 2014, an amendment to the Illinois’ Right to Privacy Act in the Workplace Act will go into effect. Since January 1, 2013, the Act has prohibited employers from requesting or requiring that employees or applicants provide passwords or related social media account information, or provide access to their profile on a social networking website. The amendment limits the scope of the Act’s prohibition on requesting or requiring access to social media accounts. Following the amendment, employers will be permitted to access professional accounts where the employer has a “duty to screen employees or applicants prior to hiring or retain employee communications as required under Illinois insurance laws or federal law or by a self-regulatory organization” as defined by the Securities Exchange Act. A “professional account” is defined by the Act as an account, service, or profile used or accessed by a current or prospective employee for business purposes of the employer. Employers will still be prohibited from requesting or requiring access to personal accounts unrelated to any business purpose of the employer.
  • Legalization of Medical Marijuana: Effective January 1, 2014, registered users suffering from a “debilitating medical condition” will be allowed to purchase medical marijuana from state-licensed dispensaries. Employers may not penalize employees for their status as patients who are qualified and registered to purchase medical marijuana, unless failing to do so would cause the employer to lose monetary funding under federal law. However, employers retain the right to restrict or prohibit the use of marijuana in the workplace and may implement and enforce a drug-free workplace policy, provided the policy is enforced in a non-discriminatory manner. Employers also may adopt reasonable policies regarding the consumption, storage, or timekeeping requirements regarding the use of medical marijuana.
  • Prevailing Wage Records Requirements: Effective January 1, 2014, contractors and subcontractors performing work on public works projects are required to keep payroll records, either electronically or on paper, of all workers employed on the project for at least five years (increased from three years) after the last payment on the contract.
  • Concealed Weapons Law Developments Following last summer’s adoption of the Illinois Fire Concealed Carry Act, employers seeking to prohibit individuals from bringing concealed weapons onto their private property are required to post a sign to that effect at building entrances. The Illinois State Police recently released proposed rules regarding the sign, which consists of a white background and a depiction of a handgun in black ink with a circle (of four inches in diameter) around the handgun depiction with a diagonal slash across the firearm in red ink. No text or other marking is contained in the sign, except the reference to the Illinois code section 430 ILCS 66/1. The sign must be posted clearly and conspicuously at the entrance to the property. A template of the approved sign is available here: https://ccl4illinois.com/ccw/Public/Signage.aspx
  • Same-Sex Marriage Recognized: Effective June 1, 2014, same-sex marriage will be recognized in Illinois. Same-sex and different-sex couples will be entitled to the same benefits, protections and responsibilities of civil marriage.
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Overtime Rules’ Violations in the Crosshairs

Labor lawyers are doing a fine business in this ambivalent economy thanks much to employers’ unknowing abuse of overtime rules and/or misclassification of employees into exempt or non-exempt status.  Bill Bowen of The Dallas Morning News writes, “As the economy has tumbled, the number of fair wage cases investigated by the Dallas office in 2011 almost doubled the 642 in 2008.  Nationally, the department investigated a record number of wage and hour cases, most of which are for unpaid overtime.”  One theory explaining this trend is the complicated laws and changing workplace circumstances that confuse employers.  In fact, some estimate that between 60% and 80% of employers are NOT in compliance with the Federal Labor Standards Act (FLSA).  Are you?

Enacted almost 75 years ago, the FLSA may not be relevant to today’s workplace and the people who are employed there.  Mr. Bowen continues, “Gone are the clear lines of demarcation among manager, employee, administrative worker and the outside salesperson, designations that help define whether a worker is exempt from the wage and hour protections.”  And look at how work habits have changed.

Thanks to technology that did not exist back when banana splits were 16 cents and the minimum wage was 33 cents, employees can work flexible hours, from home or on the road, and they are more likely to be an independent contractor.  Try keeping up with the number of hours these people work!  As experience has played out, there are two typical types of “overtime violations”.

  1. “Off the Clock”:  When workers are asked to perform certain tasks before or after they start work, such as changing into special work clothing or daily “pre-meetings”.  Or, if they are asked to work during lunch.  Rule:  If the employee is on the premises and under the employer’s control, then they should be paid.
  2. “Classification Infractions”:  Today’s star example is the information technology position.  Do not classify a computer system employee by their job title.  Their job responsibilities are the important criteria in determining Exempt/Non-Exempt Status (NOTE to Clients: find the “Checklist for Identifying Exempt Employees” in the HRInsights Answers Tool).  Banks have also been on the hook for classifying Loan Officers as “Exempt” using the administrative exception. However, the Courts have found these employees to be spending the preponderance of their time selling loan products and are “Not Exempt”.

While small businesses won’t be hit with the large back-pay awards suffered recently by AT&T, IBM and others, the price tag for an infraction will hurt their pocketbook just the same.  So, take the time to review your employees’ status once a year.  You may find reason to make some changes.