Workplace Accommodations/Medical Leave

MEDICAL LEAVE

Employees who work at companies of a certain size, and who have worked for them in a full-time capacity for over a year, may be entitled to medical leave for certain medically qualifying reasons, for themselves or to care for an immediate family member, or for the birth or adoption of a child, under the Family and Medical Leave Act of 1993 (“FMLA”). At Utreras Law Offices, our lawyers understand the regulations the FMLA imposes on both employers and employees.

Improperly denying or interfering with such rights may have significant consequences to your company that could otherwise have been readily avoidable. However, employers are entitled to request certain documentation from an employee’s physician to corroborate such requests.

If you have a question about what your FMLA rights and obligations are, as either an employee or business, under these laws, please contact us.

DISABILITY

The Americans with Disabilities Act (“ADA”), via the recently implemented ADA Amendments Act of 2008, broadened the coverage of what constitutes a “disability” for purposes of requiring an employer to provide such individuals with a reasonable accommodation, unless it poses an undue hardship on the employer.

State and federal disability laws prohibit discrimination or harassment not only against those that may actually have a qualifying disability, but those that may have had a history of a disability, or are perceived as being disabled (even though they are not).

Sometimes, work-related injuries can result in an employee becoming a qualified individual with a disability, on top of their pending or resolved worker’s compensation claim. In these instances, employers have to carefully balance their concerns against a returning employee reinjuring him/herself, against the employee’s right to return to work with or without a reasonable accommodation.

If you feel you have been discriminated against due to an actual or perceived disability, or if your business has encountered a disability situation with an employee, contact us for a consultation to see how we may assist you in maneuvering through the ADA – a complicated area of employment law.

 Severance, Non-Compete Agreements

We can also assist you in the event you are ending an employment relationship. In Illinois, companies are not required to provide any severance to employees that are terminated, regardless of reason. However, many companies may wish to offer a severance as a means of securing a release of future claims from an employee against it.

Regardless of the circumstances surrounding the end-of-employment relationship, if you are a business who wishes to offer a severance, or an employee who has been offered one, you should have an experienced employment attorney review the terms to ensure its legality and identify any potential issues of concern.

Non-Compete & Non-Solicitation Agreements

Our attorneys are also experienced in drafting and reviewing non-compete and non-solicitation agreements. A non-compete agreement prohibits a former employee from working for a competitor, and a non-solicitation agreement prevents former employees from soliciting clients with whom they worked by virtue of the previous employment arrangement.

Illinois courts recognize the right of employers to request and seek these restrictive covenant agreements from their employees. But, they must be reasonable in time and geography, otherwise they may be unenforceable.
Regardless of whether you are an employee or a business, you should consult with an attorney before entering into any such agreements to ensure that such agreement is drafted properly, is legally enforceable, and protects your interests.

Sexual Harassment

Sexual harassment in the work force may appear to be a relic of the past, but recent jury verdicts and the high number of claims still brought to the EEOC show otherwise. Our firm is experienced in handling sexual harassment allegations, from internal company investigations to state and federal litigation. We have also been able to assist victims of sexual harassment, by getting employers to immediately separate the harasser from the victim and begin seriously investigating the allegations.

We are also experienced in assisting corporations minimize such situations in the first place, by drafting anti-harassment and anti-discrimination workplace policies conducting employee training serving as third-party investigators All of these approaches are recognized by courts as valid approaches to dealing with sexual harassment allegations.

PROTECTING EMPLOYERS:
If an employee directly or indirectly reports allegations of sexual harassment, you as an employer have a legal obligation to promptly follow-up. Getting the proper legal advice at this stage can help your company avoid or minimize your legal exposure.

PROTECTING EMPLOYEES:
Sexual harassment can arise from disparaging remarks, inappropriate physical contact, repeated requests for dates, or being denied advancement for refusing sexual advances, despite your qualifications. If you feel that you have been the victim of sexual harassment, contact us for a consultation.

Unemployment Hearings

We are Chicago unemployment lawyers who have represented numerous individuals and companies in unemployment compensation hearings before the Illinois Department of Employment Security (“IDES”). With a current Illinois unemployment rate last reported at 10%, unemployment insurance benefits have become a hotly contested issue. These payments can help while an individual seeks to re-enter the workforce. But if you own a business, being found liable on unemployment claims will cause your unemployment insurance rates to rise.

We have experience representing clients at all levels, from purely administrative levels, such as telephonic hearings, and the Board of Review, to the Circuit Courts. We can assist in optimally positioning your claim or defense for success, as we have so often done for our clients in the past. Contact us if you need legal representation in an unemployment matter. The earlier in the process you obtain legal assistance, the better the possibility for creating a favorable legal record on your behalf.

 Discrimination (age, pregnancy, race, gender)

Contrary to widely held belief, there are no employment laws that prohibit general discrimination or harassment in the workplace. But there are federal and Illinois laws that make it illegal to discriminate or harass employees on account of their:

  • Race Sexual Orientation
  • National Origin Gender/Sex
  • Age Religion
  • Disability Pregnancy
  • Marital Status Arrest Record
  • Military Discharge Status Military Status

Unpaid wages, commissions, tips

Wage laws in Illinois are governed by the Fair Labor Standards Act (“FLSA”) and the Illinois Wage Payment and Collection Act (“IWPCA”). Employees are entitled to compensation for all their time worked, and to such payments no less than twice per month (with few exceptions). However, there are number of nuances within the wage laws that can affect what the proper wages for a given employee may be, and how they need to be paid. Among those issues are:

Salaried versus Hourly Employee – the law usually categorizes employees as exempt (ie. salaried, and therefore exempt from overtime pay) or non-exempt (hourly, entitled to overtime pay after a 40-hour work week). The wrong classification of an employee can result in significant penalties to an employer, including back pay, liquidated damages, fines, attorneys’ fees, and costs.

Employee versus Independent Contractor – employee rights, and employer obligations, are different from those of and to an independent contractor, depending on the classification. The distinction is critical in avoiding a dispute with an individual providing you with services, that may result in your company owing back employment taxes, interest, unemployment insurance contributions, and penalties.

Employees misclassified as independent contractors may be losing out on many rights they are entitled to as employees, including minimum wage, overtime, certain employee benefits, and the right to seek unemployment benefits if dismissed.

The Internal Revenue Service (“IRS”) and state revenue departments have started cracking down on companies using independent contractor designations to seemingly avoid making required employment tax contributions. We can conduct internal audits of your workforce to assess whether your company’s work staff can properly be designated as salaried, and whether they can function as independent contractors or must be construed as employees.

There are also a number of other laws enforced by the Illinois Department of Labor and the U.S. Department of Labor, that govern employers, which we have experience handling. If you believe you have been misclassified as a salaried employee or independent contractor, that your employer has violated the FLSA or IWPCA, or if your company is the subject of any such investigation or claim, or you otherwise wish to ensure that your company is in compliance, please contact us.

Retaliation

Many federal, state, and local laws contain provisions prohibiting employers from retaliating against existing employees for their having complained of, filed claims (whether formally or informally), or participating in an investigation or proceeding involving, alleged violations under:

  • Title VII of the Civil Rights Act of 1964 (Title VII)
  • Americans with Disabilities Act (ADA)
  • Age Discrimination in Employment Act (ADEA)
  • Family and Medical Leave Act of 1993 (FMLA)
  • Fair Labor Standards Act (FLSA)
  • Pregnancy Discrimination Act of 1978 (PDA)
  • Uniformed Services Employment and Reemployment Rights Act (USERRA)
  • Occupational Safety & Health Act (OSHA)
  • Illinois Wage Payment & Collection Act (IWPCA)
  • Illinois Human Rights Act (IHRA)
  • Illinois Equal Pay Act of 2003 (EPA)

Illinois courts have also recognized the right of former employees to bring claims against their former employer for terminating them for having filed a worker’s compensation claim.

If you believe you have been the victim of retaliation after exercising your rights under any of the above Acts, contact us to discuss your rights.

Illinois Whistleblower Act

Under the Illinois Whistleblower Act, it is illegal for employers (defined as any entity, other than a governmental one, with one or more Illinois employees) to take adverse action against an employee (i.e. terminate, demote, deny promotions, or issue discipline) who discloses information to a government agency, if the employee reasonably believes the information discloses a violation of state or federal laws. Employers also cannot retaliate against an employee who participates in an investigation or refuses to engage in acts that would violate state or federal laws.

A typical work-related whistleblower scenario results when an employee discovers an issue regarding how their employer is doing business, and raises the “mistake” with a manager or outside reporting agency hoping the problem can be corrected. They soon find themselves disciplined or fired. Only then does the employee realize that they have been retaliated against for being a whistleblower.

Under the Act, such an employee can bring a civil action against the employer for all “make whole” relief including: reinstatement with the same seniority status back pay, with interest litigation costs, expert witness fees, and reasonable attorney’s fees. If you have questions about your rights under the Illinois Whistleblower Act, or believe that your employer may have violated your rights under the Act, contact us.

Employment Disputes and Strategies

An employment dispute can cause both businesses and employees to experience personal and professional disruption. Our employment litigators have the expertise to assess risk, the merits of a claim, and the potential for an early in-court or out-of-court resolution.

We work to resolve cases as efficiently and economically as possible before trial – through aggressive motion and discovery practice. Should your matter proceed to trial, as experienced trial lawyers, we present our client’s case in a manner persuasive to judges and juries alike.

We can defend your business in wage and hour claims, unemployment compensation claims, medical leave and disability claims, and claims of illegal discrimination, harassment, or retaliation. Contact us to discuss any work-related disputes you may encounter as a business or employee.

State and Federal Agencies

We have assisted federal and state employees in administrative proceedings against various federal agencies including the Social Security Administration. We are familiar with administrative procedures and the EEO process. We provide an effective plan with clear outcome goals and seek prompt resolution on your behalf. However, if required we are ready to represent you at the hearing stage as well. The EEO process is a fairly quick process, and without local counsel the water may seem muddy, but we are here to guide you on the path to receiving the outcome you deserve.