lllinois Chamber of Commerce HR Illinois Blog

By: Jeffrey A. Risch, SmithAmundsen LLC

In recent months I have been inundated with calls from union contractors complaining that the Illinois Department of Labor (“IDOL”) will not recognize a local collective bargaining agreement (“CBA”) when it comes to compliance with the Illinois Prevailing Wage Act.  Specifically, several union contractors of all shapes, sizes and backgrounds have voiced concern and dismay over the IDOL’s refusal to recognize an underlying CBA and force the contractor to walk “lock-step” with published prevailing wage rates and rules that are, at times, decidedly different from the union contract.  After handling hundreds of audits and taking several cases through litigation at the IDOL and in State court, it is my opinion that this issue is much more complicated and complex than the IDOL’s stated viewpoint.  In other words, there is supporting authority to suggest that an underlying union contract may, in certain limited circumstances, override the prevailing wage law and interpretive rules as determined and published by the IDOL.

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 By:  Nancy E. Joerg, Esq., Senior Attorney and Shareholder, Wessels Sherman Joerg Liszka Laverty Seneczko P.C.

Many employers call our law firm to ask how much notice they have to give an employee when they fire them.  There is a widespread belief that employers will be violating the law if they do not give employees some kind of notice.  Many callers ask me whether it is true that they must give an employee two weeks’ notice when they fire the employee.  The answer often surprises these callers.

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By:  Mike McGowan, Esq., SmithAmundsen LLC

On October 1, the Occupational Safety and Health Administration issued a news release, stating that they would begin a National Emphasis Program (“NEP”) on recordkeeping in order to determine the accuracy of worker illness and injury data recorded by employers. The driving force behind this directive is the detection of under-reporting of work-related injury and illness in certain industries.

Who Will Be Included?

The focus of the NEP will be on establishments operating in industries with historically high rates of work-related injury or illness and that have unusually low rates being reported. Some examples of affected industries include: animal slaughtering, steel foundries, concrete pipe manufacturing, soft drink manufacturing, bottle water manufacturing and pet / pet supply stores. A full list of “In Scope” Industries can be found in Appendix A to OSHA Directive [09-08(CPL 02)]. Inspected establishments will be limited to those with 40 or more employees.

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Mike McGowan, Esq.,  SmithAmundsen LLC

On October 1, the Occupational Safety and Health Administration issued a news release, stating that they would begin a National Emphasis Program (“NEP”) on recordkeeping in order to determine the accuracy of worker illness and injury data recorded by employers. The driving force behind this directive is the detection of under-reporting of work-related injury and illness in certain industries.

Who Will Be Included?
The focus of the NEP will be on establishments operating in industries with historically high rates of work-related injury or illness and that have unusually low rates being reported. Some examples of affected industries include: animal slaughtering, steel foundries, concrete pipe manufacturing, soft drink manufacturing, bottle water manufacturing and pet / pet supply stores. A full list of “In Scope” Industries can be found in Appendix A to OSHA Directive [09-08(CPL 02)]. Inspected establishments will be limited to those with 40 or more employees.

How Will This Program Be Conducted?
OSHA’s Office of Statistical Analysis will provide each Area Office with a list of establishments to be inspected. Each Area Office will only have to inspect five establishments for the test pilot, which will expire in one year. This initiative would involve a record inspection, employee interviews, and a limited safety and health inspection of the workplace.

The records to be reviewed shall include medical records, workers’ compensation records, insurance records, payroll/absentee records and, if available, company safety incident reports, company first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. Records stored off-site may also be subject to review.

Citations and Penalties
With regard to the workplace inspection, the inspector will generally be looking for consistency with the recorded illnesses and injuries, and will be conducting interviews and records inspections to ensure that the reporting is accurate. However, they these OSHA inspectors will also address any violations observed in plain view. The inspector may combine the recordkeeping inspection with another inspection that may also be scheduled for the workplace.

Citations for recordkeeping violations found shall be classified as “other than serious,” and fines will be assessed as deemed appropriate.

Conclusion
There’s no question that OSHA is being more aggressive now than in recent history.  The hundreds of millions of dollars being devoted to OSHA will no doubt have a lasting impact on the modern workplace.  Employers must evaluate not only their safety programs, but should now immediately assess their record keeping policies; including record retention practices. 

Mike McGowan is a Partner with the law firm of SmithAmundsen LLC and regularly counsels clients concerning OSHA and related workplace safety and health matters.  Attorney McGowan may be reached at 312 894-3200 or by email at mmcgowan@salawus.com.

Peter A. Steinmeyer, Epstein Becker Green

It is well-established Illinois law that “substantial continued employment” is sufficient consideration to support a post-employment restrictive covenant signed by an existing employee.  The issue, however, has been what constitutes “substantial continued employment.”  Courts have held that continued employment of only seven months is not sufficient consideration, but that continued employment for two years is sufficient.

A federal judge in Chicago recently weighed in on this issue, holding that continued employment for less than one year was not sufficient consideration for a post-employment restrictive covenant.  The Court therefore refused to enforce the provision.

By: Nancy E. Joerg, Esq., Senior Attorney and Shareholder, Wessels Sherman Joerg Liszka Laverty Seneczko P.C.

I received a phone call from an angry Human Resource person who had just been in-formed by the IDES that an ex-employee (”the Claimant”) would be receiving unem-ployment insurance benefits even though the Claimant had in fact voluntarily resigned from the Company.

What happened is that the Claimant offered two weeks’ notice to the employer along with his voluntary resignation. The employee offered his resignation because he in-tended to eventually accept work at another company.

The Company, as is true of many employers, did not want the employee hanging around for the two week notice period. Therefore, the Company asked him to leave immediate-ly. The Company did not pay the employee for the period covering the two weeks’ no-tice.

The employee filed for unemployment upon being told by the Company that he was to leave immediately, rather than working during his two weeks’ notice. The Company protested the Claimant’s claim for unemployment by saying that the Claimant had voluntarily quit per Section 601A of the Illinois Unemployment Insurance Act.

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Q.  What is required for meal and break periods?

A.  Companies must give their employees a meal period no later than the 5th hour if the employee is scheduled to work 7 1/2 hours or more that day.  In order to comply with both Illinois and Federal laws, the meal period should be a minimum of 1/2 hour and may be unpaid.  The employee must be free from all duties during the meal period and if interrupted  may be permitted to start their meal period over.  Despite myths about additional break periods, there is no law requiring breaks beyond the meal period.  If however, a company chooses to give their employees additional breaks, a break less than 30 minutes in duration must be paid.

Comments:

8 Responses to “HR Helpline Answers Your Questions”

1. Bill says:

   October 14, 2009 at 9:26 am

   In response to Pam - thank you for your quick response. I did find my answer from the US DOL website below under (FAQs).

   (http://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=317&faqsub=Work+Hours&faqtop=Wages+%26+Work+Hours&topicid=1)

   Question: When must breaks and meal periods be given?

   Answer: The Fair Labor Standards Act (FLSA) does not require breaks or meal periods be given to workers. Some states may have requirements for breaks or meal periods. If you work in a state which does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee (or the employee’s representative).

   According to the above, we are in compliance because we do provide a 20-minute paid meal break that is required in Illinois.

2. Pam says:

   October 13, 2009 at 10:22 am

   In response to Sue - to be safe, I would suggest starting the meal period at 11am, as the Illinois’ One Day of Rest in Seven Act states the meal period must be given no later than the 5th hour. By noon, your employees are into their 6th hour of work. Your paid break of 10 minutes is fine, although not required by law.

   In response to Bill - Illinois and Federal laws differ and can be confusing. Illinois says that the meal period can actually be only 20 minutes and be unpaid. Federal says that in order for the meal period to be unpaid it must be 30 minutes or longer. Most employers do 30 minutes or more unpaid. The Fair Labor Standards Act calls a bona fide meal period 30 minutes or more. They would call a 20 minute period a rest period. So, even though you are in compliance in Illinois, there are some concerns on the federal side. You may want to look into this further with the US DOL.

   A twelve hour shift does not require additional breaks or meal periods. Only if an employee is scheduled to work 15 hours (two 7 1/2 hour shifts back to back) is an additional meal period required.

   Pam Holleman, Illinois Chamber

3. Bill says:

   October 13, 2009 at 7:11 am

   We provide a paid 20-minute meal break for employees who are scheduled to work at least 7 1/2 hours. It is my understanding that a 30-minute meal break is only required if it is unpaid. Is this correct?

   Also, do you know if there are any other guidelines on meal breaks for employees who work 12-hour shifts or work overtime beyond a 7 1/2 hour shift?

4. Sue says:

   October 12, 2009 at 7:23 am

   Does the following meet the requirements of the meal and break requirements? If not what would be acceptable?

   Employees start at 6:00 a.m. have a 10 minute paid break at 9:00 and then a 30 minute unpaid lunch at 12:00 shift ends at 2:30 p.m.

5. Pam says:

   October 9, 2009 at 2:30 pm

   Illinois’ One Day of Rest in Seven Act states that the meal period must be provided no later than the fifth hour if scheduled at least 7 1/2 hours, and must be at least 20 minutes. However, under the Fair Labor Standars Act (federal law), that the meal period must be 30 minutes or longer in order for it to be unpaid. So, my recommendation is 30 minutes so that you comply with both Illinois and Federal regulations.

   Pam Holleman, Illinois Chamber

6. Julie says:

   October 9, 2009 at 1:51 pm

   I thought the meal period after 5 hours could be 20 minutes - you’re saying 30 minutes. Is that the state or federal reg? Thanks!

7. Pam says:

   October 9, 2009 at 10:26 am

   You should absolutely make your employees take their meal periods. Breaks beyond the meal period are not required by law. Even if you allow your employees to take a meal period and they willingly choose to eat at their desk, you as the employer are responsible. If a disgruntled employee chooses to go the Illinois Department of Labor you could very well be audited and fined. The responsibility lies with the employer to make sure that meal periods are indeeed taken. If you have to, discipline your employees for not taking their meal period. Don’t look the other way.

8. Amy says:

   October 9, 2009 at 8:53 am

   What if the culture of your work environment is that most employees work while eating at their desk? If the employee terminates, is there a potential for them to sue based on this even though the handbook states we give breaks? In other words, should we mandate the breaks to avoid potential litigation?

By: Sara Stertz, SmithAmundsen LLC

As we reported by SmithAmundsen a few months ago, with the downturn in the economy and upturn in the unemployment rate, it is clear that the US Immigration and Customs Enforcement Agency (ICE) is making a concerted effort to increase enforcement of undocumented workers. As an employer, the best defense is a good offense. ICE has indicated that the best way to ensure your company has a legal work for is through the implementation of E-Verify. In fact, ICE investigators have stated that a confirmation of valid employment status of an employee through E-Verify is akin to a “get out of jail free card” for an employer should the employer’s workforce be audited by ICE.

However, verifying a legal workforce is only the first step. Should your company implement E-Verify, it is imperative that you continue to follow and apply non-discriminatory hiring practices. The government has provided the following list of rules which an employer utilizing E-Verify must follow to assist and comport with non-discriminatory hiring practices:

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