Employment Law

Most people think the law protects them from any form of employment discrimination.  This is not true.  Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, gender, or age.  The purpose of the Illinois Human Rights Act is to protect workers in Illinois from unlawful discrimination in employment.  Illinois is an employment-at-will state which means that an employer can fire an employee for any reason as long as the discharge is not based on a protected statute.  An employer can treat you unfairly which does not constitute unlawful discrimination unless the action was based on race, gender, age, or another protected status.

What kinds of discrimination are against state law in Illinois?

The Illinois Human Rights Act makes it illegal for an employer to discriminate on the basis of race, color, religion, gender, pregnancy and childbirth, national origin, ancestry, citizenship status, age (40 and over), marital status, unfavorable military discharge, military status, genetic information, arrest record, victims of domestic violence, physical, mental or perceived handicap/disability, or sexual orientation (including gender-related identity).

Illinois law also provides broader protection for disabled employees than the similar federal statute, the Americans with Disabilities Act, because it does not require that the employee have a substantial limitation of major life activity. Instead, the state law defines disability or handicap as a “determinable mental or physical characteristic of a person.” See disability discrimination.

State law also makes it illegal to “aid and abet” discrimination, which permits legal action to be taken against any person (not limited to an employee of your employer) who helped cause the discrimination to happen.

How do we file a discrimination claim in Illinois?

In Illinois, a discrimination claim can be filed either with the state administrative agency, the Illinois Department of Human Rights (IDHR), or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims.

The Illinois anti-discrimination statute covers some smaller employers not covered by federal law for sexual harassment, retaliation, and age claims only. Therefore, if your workplace has between 1 and 14 employees and you have a sexual harassment or retaliation claim, will file with the IDHR, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, we may file with either agency. Similarly, if your workplace has between 15 and 20 employees, we would file your age discrimination claim with the IDHR, as federal law covers only employers with 20 or more employees in age discrimination cases.

Filing with the IDHR is required to pursue a discrimination claim under the Illinois Human Rights Act. If the IDHR finds “substantial evidence” or misses certain time limits, you can pursue a lawsuit in the Illinois Human Rights Commission, not in court. You are not required to have an attorney to file a discrimination claim with the IDHR but an experienced attorney can make the difference. IDHR complaints must be filed within 180 days of the date of the discrimination against you.

What are the time deadlines?

If you choose to file a discrimination claim with one of these administrative agencies, do not delay in contacting the IDHR or EEOC. There are strict time limits in which charges of employment discrimination must be filed. In order for these agencies to act on your behalf, you must file with the IDHR (or cross-file with the EEOC) within 180 days or the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring

What we can do to help you. Leskera Law Firm will evaluate your case to see if it falls within the discrimination the law protects.  If so, we can file your case with the appropriate agency, work the case through the system, and file a lawsuit after we receive a right to sue letter.  We have experience in discrimination cases based on age, gender, and race and would be pleased to offer you assistance.

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

COVERED EMPLOYERS

The FMLA only applies to employers that meet certain criteria. A covered employer is a:

• The private-sector employer with 50 or more employees;
• A public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
• Public or private elementary or secondary school, regardless of the number of employees it employs.

ELIGIBLE EMPLOYEES

Only eligible employees are entitled to take FMLA to leave. An eligible employee is one who:

• Has worked for the employer for at least 12 months;
• Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave^*; and
• Works at a location where the employer has at least 50 employees within 75 miles.

LEAVE ENTITLEMENT

Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:

• The birth of a child;
• To care for a spouse, son, daughter, or parent who has a serious health condition;
• For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
• For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

JOB RESTORATION AND HEALTH BENEFITS

Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy. Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.

ENFORCEMENT

It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA.  If you have experienced interference with your FMLA rights, please call Leskera Law Firm and we can help you.

Sexual Harassment

The Illinois Human Rights Act protects Illinois employees, tenants, students, and others from sexual harassment.

In employment, sexual harassment is any unwelcome sexual advances, requests for sexual favors, or any conduct of a sexual nature when:

1. submission to such conduct is either explicitly or implicitly made a term or condition of employment, and submission to or rejection of the conduct is used as a basis for making decisions about your employment; or
2. such conduct interferes with your job performance or creates an intimidating, hostile, or offensive working environment.

In education, sexual harassment is any unwelcome sexual advances or requests for sexual favors made to a student by an executive, administrative staff, or faculty member, or any conduct of a sexual nature that substantially interferes with the student’s educational performance or creates an intimidating, hostile, or offensive educational environment.

In public accommodations, sexual harassment is any unwelcome sexual advances or requests for sexual favors made by a place of public accommodation, such as persons who own or work at hotels, restaurants/bars, stores, and gyms. Public officials are also considered places of public accommodation.

In housing, sexual harassment is any unwelcome sexual advances or requests for sexual favors made by a landlord, property owner, housing provider, manager or staff, that results in a housing environment that is intimidating, hostile, offensive, or significantly less desirable.

Retaliation for complaining about sexual harassment is also prohibited by the Illinois Human Rights Act. Retaliation is conduct intended to deter or dissuade a person from making a complaint or filing a report of sexual harassment, or participating in an investigation conducted by the Illinois Department of Human Rights or other similar agency

What to do if you are sexually harassed:

• Object.  Let the harasser know right away that you are offended by this conduct and want it to stop. Inappropriate behavior may escalate, so it’s important to speak out.
• Document.  Write down what happened to you, when it happened, who was there, and what was said by all the parties involved.  Keep records of subtle or overt job or educational-related promises or threats.
• Identify witnesses.  Speak with peers whom you trust. Often, the person harassing you may be bothering others as well. Witnesses may be willing to speak out on your behalf.
• Notify Management.  It is a good idea to report the incident to your supervisor or academic advisor. If the supervisor or academic advisor is the harasser, see his or her supervisor, and also report the incident to the affirmative action officer and/or human resources.
• Call Leskera Law Firm.  We are experienced in handling these claims and will enforce your right to free yourself from sexual harassment and obtain full and fair compensation for you.  Attorney’s fees are recoverable under the Act so you don’t have to pay our attorney’s fees or any costs of litigation.

The Wage Payment and Collection Act, 820 ILCS 115/1, is the law that governs the payment of wages to employees and the deductions that an employer can make from an employee’s paycheck. The work has to be performed in Illinois for an employee to make a claim under the Act.

All final compensation, including bonus payments, vacation pay, wages, and commissions must be paid on your next regularly scheduled payday. 820 ILCS 115/5.

An employee is not entitled to severance pay, sick pay, or holiday upon separation unless the employer has promised the pay in an employment contract or other agreement. 820 ILCS 115/2.

When an employee leaves an employer’s employment, the employer is required to pay the final compensation of separated employees in full at the time of separation, if possible, but in no event later than the next regularly scheduled payday for such employee. Unless the individual employment contract or agreement provides for severance pay, none is due. Final compensation can include wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacations and earned holidays and other compensation as defined by that agreement which is owed and has not been paid.

An employee who is to work 7 1/2 continuous hours or more shall be provided a meal period of at least 20 minutes. The meal period must be given to an employee no later than 5 hours after beginning work. Illinois has no law regarding breaks.