Wage/Hour Violations
The
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201
et seq., and Illinois Minimum Wage Law (IMWL),
820 ILCS 105/1-15 provide guidelines for the minimum
wage and maximum hours for employees. Generally, these
laws apply to any employer of at least one employee.
The FLSA sets the federal minimum wage at $6.55 per
hour, though this will increase to $7.25 per hour as of
July 24, 2009. The IMWL sets the Illinois state minimum
wage at $7.75 per hour, rising to $8.00 as of July 1,
2009. Employees must be paid the greater of the federal
or state minimum wages. Both the FLSA and the IMWL
contain overtime provisions mandating that employers pay
non-exempt hourly employees at least time and one-half
(“overtime”) for all hours worked in excess of forty in
one workweek. The FLSA and IMWL are very complex, and
may involve issues including but not limited to employee
misclassification, failure to pay minimum wage, failure
to pay overtime, donning and doffing, rounding time, tip
credits, unpaid meals, and unpaid travel time. If you
have any questions regarding wage and hour issues,
contact an attorney. Under the FLSA, an injured
employee can maintain a collective action against the
employer. Under both the FLSA and the IMWL, an injured
employee may collect unpaid wages for the period of two
years preceding the filing of a complaint. If the
employer knew of the violation (willful), the employee
may recover one additional year of unpaid wages. In
addition, liquidated damages in the amount of the unpaid
wages are presumed, and attorney’s fees and costs are
provided to the employee in the event of a settlement of
favorable verdict at trial.
The
Illinois Wage Payment & Collection Act (IWPCA), 820
ILCS 115/1-16, generally provides that an employer must
pay its employees for all time that worked, within two
weeks of the end of the period in which the wages were
earned. The IWPCA regulates final compensation, and
further specifies that it is unlawful for the employer
to deduct wages without written consent of the
employee. Under the IWPCA, employers who violate the
law may have to pay the injured employee up to twice the
sum of unpaid wages, plus some additional damages if
payment is past due.
FMLA & Retaliation
The
Family and Medical Leave Act (FMLA), 29 U.S.C. §
2601, et seq., is a federal lawsuit which applies
to large employers (50 or more employees for 20 or more
weeks preceding the suit). Eligible employees must have
been employed for at least 12 months by the employer,
worked at least 1250 hours in the 12-month period
immediately preceding the leave, and must be employed at
a worksite where there are at least 50 employees within
75 miles. Eligible employees of covered employers are
entitled to a total of 12 weeks of unpaid leave during
any 12-month period. The leave may be continuous or
intermittent, and may be taken for the birth and care of
a newborn child, adoption placement, the care of an
immediate family member with a serious health condition,
or the employee’s own serious health condition. It is a
violation of the employee’s FMLA rights if an employer
fails to notify the employee of his/her FMLA rights once
the employer has notice of a qualifying condition,
denies a properly requested leave, fails to reinstate
the employee to substantially the same job as was
occupied before the leave, otherwise interferes with the
FMLA rights, or retaliates against the employee for
taking or requesting leave. A lawsuit must be filed
within 2 years of the unlawful act, or 3 years for
willful violations. A successful FMLA Plaintiff may be
entitled to backpay, actual monetary loss sustained up
to 12 weeks of pay, liquidated damages equaling the sum
of the amount lost, injunctive relief, and attorney’s
fees. Compensatory and punitive damages are not
available under the FMLA.
The
Illinois Whistleblower Act (IWA), 740 ILCS 740/1-30,
applies to any employers of 1 or more employees but does
not include governmental entities. The IWA prohibits
retaliation against employees who disclose information
to government or law enforcement agencies, where the
employee has reasonable cause to believe the information
discloses a violation of state or federal law, rule, or
regulation. The IWA moreover prohibits retaliation for
refusing to participate in an activity which would
result in a violation of state or federal law, rules, or
regulations. Under the IWA, a Plaintiff may be entitled
to injunctive relief, twice the amount of backpay,
interest, and special damages including attorney’s fees
and costs.
The
Sarbanes-Oxley Act (SOX), 15 U.S.C. § 7201, et
seq., applies to publicly traded companies and
offers whistleblower protection for employees who
provide information, cause information to be provided,
or otherwise assist in an investigation regarding any
conduct which the employee reasonably believes
constitutes fraud on the shareholders. Such information
can be provided to a federal regulatory or law
enforcement agency, any member of congress or
congressional committee, or any person with supervisory
authority over employee. There is a very short
timeframe in which to assert a SOX claim; thus if you
believe you may have a cause of action it is important
that you speak with an attorney. Successful SOX
Plaintiffs may be entitled to injunctive relief, front
pay, backpay, interest, and special damages including
attorney’s fees and costs.
Discrimination/Adverse Action
Related to Membership in Protected Class
Title
VII, 42 U.S.C. § 2000e, is a federal law which
provides protection for employees who work for a private
employer, state and local government, or educational
institution employing at least fifteen employees each
day for the twenty weeks preceding the claim. Title VII
prohibits any adverse action (including termination,
demotion, refusal to hire, failure to promote, increased
scrutiny, or constructive discharge) on the bases of
race, color, religion, sex, or national origin. Title
VII further prohibits retaliation against employees who
oppose discriminatory behavior or participate in any
sort of proceeding relating to a charge of
discrimination. In order to bring suit under Title VII,
an injured employee must first exhaust the
administrative remedies by filing a charge with the
Equal Employment Opportunity Commission (“EEOC”).
From the date of the adverse action, employees have 300
days to file at the EEOC. Once the EEOC has progressed
through investigation, issued a determination, and/or
issued notice of the right to sue, the employee may file
a lawsuit. Plaintiffs successful in bringing suit under
Title VII may be entitled to back pay, reinstatement or
front pay, compensatory damages, and attorneys’ fees.
In cases where the employer acted intentionally, with
malice or reckless disregard, a successful plaintiff may
also be awarded punitive damages. Under Title VII, both
compensatory and punitive damages are statutorily capped
based on the number of individuals employed by the
employer. For employers with 15-100 employees, a
plaintiff may be awarded no more than $50,000 in
compensatory damages and no more than $50,000 in
punitive damages for willful violations. For employees
with 101-200 employees, the cap for each is $100,000.
For employers with 201-500 employees, the cap is
$200,000. For all other employers, the cap is $300,000
for each category of damages.
The
Illinois Human Rights Act (“IHRA”), 775 Ill. Comp.
Stat. 5/1-10, is a state law generally administered by
the Department of Human Rights (“IDHR”). The
IHRA applies to all individuals, and in part makes it
unlawful for an employer to inflict disparate treatment
upon employees on the bases of race, color, religion,
sex, national origin, ancestry, age, marital status,
physical or mental handicap, military status, or sexual
orientation. The IHRA moreover contains a provision
making it unlawful to retaliate against employees who
oppose discriminatory behavior or participate in any
sort of proceeding relating to a complaint of
discrimination. In order to bring suit under the IDHR,
an injured employee must first exhaust the
administrative remedies by filing a charge with the
IDHR. From the date of the adverse action, employees
have 180 days to file at the IDHR. Once the IDHR has
progressed through investigation, and issued a finding,
the employee may file a lawsuit in state court or
proceed to the Human Rights Commission.
Section 1981, 42
U.S.C. § 1981, is a statute prohibiting employers from
interfering with an employee’s right to make and enforce
contracts, on the basis of race. Federal case law has
interpreted Section 1981 as prohibiting employers from
taking disparate action against an employee, solely on
the basis of race. Unlike Title VII, Section
1981 applies to all employers, regardless of the number
of employees the employer has. Further, both federal
and state courts have jurisdiction over Section 1981
claims, and there is no need to file with either the
EEOC or the IDHR before filing a civil law
suit. There is a four-year statute of limitations to
file suit in court under Section 1981. Section 1981
plaintiffs may be entitled to back pay, compensatory
damages, punitive damages, discretionary attorneys’
fees, and injunctive relief. Unlike compensatory and
punitive damages under Title VII, there are no statutory
caps on damages for violations of Section 1981.
The Age
Discrimination in Employment Act (ADEA), 42 U.S.C §
6101-07, protects individuals who are aged 40 years or
older from adverse action on the basis of age. The ADEA
covers private employers with 20 or more employees
working for at least the 20 weeks preceding suit. It
protects employees of state and local government
agencies, employment agencies, private employers, and
labor organizations. Before filing a federal lawsuit
based upon a violation of the ADEA, the employee must
first file a charge of discrimination with the EEOC. An
ADEA lawsuit may be filed at any time 60 days after the
filing of the EEOC charge. Under the ADEA, a successful
plaintiff in a civil suit may be entitled to back pay,
attorneys’ fees, injunctive relief, front pay, and
liquidated damages for willful violations. Neither
compensatory nor punitive damages are available under
the ADEA.
The
Americans with Disabilities Act (ADA), 42 U.S.C. §
12101, et seq. generally prohibits employment
discrimination against qualified individuals with
disabilities in the private sector, and in state and
local government and educational institutions. The ADA
applies only to employers who have 15 or more employees
for at least 20 weeks prior to the suit. Under the ADA,
a “disability” is a physical or mental impairment that
substantially limits one or more major life activities,
a record of such impairment, or being regarded as having
such an impairment. A qualified individual with a
disability is one who, with or without reasonable
accommodation can perform the essential functions of the
employment position. Employers under the ADA must
provide qualified individuals with reasonable
accommodation. Before filing a federal lawsuit based
upon a violation of the ADA, an employee must first file
a charge of discrimination with the EEOC. From
the date of the adverse action, an employee has 300 days
to file a charge with the EEOC. After receiving a
notice of right to sue, a lawsuit can be filed.
Plaintiffs successful in bringing suit under the ADA may
be entitled to back pay, reinstatement or front pay,
compensatory damages, and attorneys’ fees. In cases
where the employer acted intentionally, with malice or
reckless disregard, a successful plaintiff may also be
awarded punitive damages. Under the ADA, both
compensatory and punitive damages are statutorily capped
based on the number of individuals employed by the
employer. For employers with 15-100 employees, a
plaintiff may be awarded no more than $50,000 in
compensatory damages and no more than $50,000 in
punitive damages for willful violations. For employees
with 101-200 employees, the cap for each is $100,000.
For employers with 201-500 employees, the cap is
$200,000. For all other employers, the cap is $300,000
for each category of damages.
The
Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d), is
a subset of the FLSA. It protects men and women who
perform substantially equal work in the same
establishment from sex-based wage discrimination. The
EPA moreover provides that retaliation for opposing
unlawful discrimination or participating in a complaint
under the EPA is in violation of the law. Suit must be
filed within 2 years (3 years for willful violations) of
the discriminatory act. Under the EPA, an injured
employee may maintain a collective action against the
employer. A successful Plaintiff may collect unpaid
wages for the period of 2 years preceding the filing of
the complaint. If the employer knew of the violation
(it was willful), the employee may recover one
additional year of unpaid wages. In addition,
liquidated damages in an amount equal to the amount of
unpaid wages are presumed, and attorney’s fees and costs
are provided to the employee in the event of a
settlement of favorable verdict at trial.
Other Types of Statutory Claims
The
Employment Retirement Income Security Act (ERISA),
29 U.S.C. § 1001, et seq. generally establishes
minimum standards for pension plans in private industry
and provides for extensive rules on the federal income
tax effects of transactions associated with employee
benefit plans. In addition, ERISA prohibits an employer
from terminating an employee in retaliation for
complaining about a violation, or in order to avoid
paying ERISA benefits.
The
Consolidated Omnibus Budget Reconciliation Act (COBRA)
provides some employees and beneficiaries the right
to continue their coverage under a health benefit plan
for a limited time after certain events, such as the
loss of employment.
The
Health Insurance Portability and Accountability Act
(HIPAA) prohibits a health benefit plan from
refusing to cover an employee’s pre-existing medical
conditions in some circumstances. HIPPA further bars
health benefit plans from certain types of
discrimination on the basis of health status, genetic
information, or disability
The
National Labor Relations Act (NLRA) protects the
rights of workers in the private sector to organize
labor unions, participate in collective bargaining, and
to take part in strikes and other forms of concerted
activity. The NLRA defines and protects the rights of
employees and employers, encourages collective
bargaining, and prohibits certain practices on the part
of both labor and management.
Tort Claims
An
individual may state a claim for common law “Retaliatory
Discharge” if he or she has been terminated for
opposing activity that is against clear mandate of
public policy. The matter must “strike at the heart of
a citizen’s rights, duties, and responsibilities before
the tort will be allowed.” Generally, the following
types of activities will constitute a “clear mandate” of
public policy: filing workers’ compensation claim,
assisting with a criminal investigation or refusing to
violate the law, some types of “whistleblowing,”
reporting threats of physical violence at work, and
reporting violations of Illinois’ “One Day Rest In
Seven” Act. Other types of reports, including
violations of wage/hour laws or the FMLA, will not
provide a basis for a retaliatory discharge claim. A suit
alleging “Intentional Infliction of Emotional
Distress” may be filed if the employer’s intentional
conduct has caused extreme emotional distress. The
employer’s intent need not be to bring about emotional
distress; reckless disregard for the likelihood of
causing emotional distress is sufficient. However, in
order to be actionable the employer’s conduct must be
extreme and outrageous. Typically, such conduct will
involve a pattern of conduct, not just isolated
incident. The employee must have been vulnerable in
some way that the employer knew of, and the employer
must have been in a position of power. The employer’s
actions must have actually caused Plaintiff’s emotional
distress, and the distress must be “severe.” Severe
distress is quantified by the intensity, duration, and
any physical manifestations of the distress.
“Defamation” is any intentional false communication,
either written or spoken, that harms a person’s
reputation; decreases the respect, regard or confidence
in which a person is held; or induces disparaging,
hostile, or disagreeable opinions or feelings against a
person. It encompasses libel & slander. Truth of the
communication is a complete defense to any claim of
defamation.
“Fraud”
is a false representation of a matter of fact – whether
by words or conduct, by false or misleading allegations,
or by concealment of what should have been disclosed –
that deceives and is intended to deceive another so that
the individual will act upon it to her or his legal
injury. A claim for fraud must allege the following
elements: a false statement of material fact; knowledge
on the part of the defendant that the statement is
untrue; intent on the part of the defendant to deceive
the alleged victim; justifiable reliance by the alleged
victim on the statement; and injury to the victim as a
result of relying upon the statement.
A claim
for “Tortious Interference With Contract/Economic
Relationship” is stated when the defendant
intentionally damages the plaintiff’s contractual or
other business relationships. In a contract claim, the
tortfeasor convinces a party to breach the contract
against the plaintiff, or tortfeasor disrupts the
ability of one party to perform his obligations under
the contract, thereby preventing the plaintiff from
receiving the performance promised. In an economic
relationship claim, the tortfeasor acts to prevent the
plaintiff from successfully establishing or maintaining
business relationships. Elements common to both claims
are: the existence of a contractual relationship or
beneficial business relationship between two parties;
knowledge of that relationship by a third party; intent
of the third party to induce a party to the relationship
to breach the relationship; lack of any privilege on the
part of the third party to induce such a breach; and
damage to the party against whom breach occurs.
“Assault and Battery” may be alleged when
there has occurred any unlawful and unpermitted touching
of another. Assault is an act that creates an
apprehension in another of an imminent, harmful, or
offensive contact. Battery is the actual harmful or
offensive touching.
“Invasion
of Privacy” occurs when there has been a wrongful
intrusion into a person’s private activities by other
individuals or the government. A suit for invasion of
privacy protects one’s private affairs with which the
public has no concern against unwarranted exploitation
or publicity that causes mental suffering or humiliation
to the average person.
“Negligent
Supervision” occurs when an employee has a
particular unfitness for his or her position, so as to
create a danger of harm to third persons. The employer
must have known or should have known that its employee
had a particular unfitness for the position so as to
create a danger of harm to third persons, and the
employer’s failure to safeguard this particular
unfitness must be the proximate cause of the plaintiff’s
injury. To satisfy the element of proximate causation,
the plaintiff must demonstrate a “tangible connection”
between the employee’s particular unfitness for the job
and the resulting harm to the plaintiff.
Contract Claims
A “Breach of Contract”
claim may involve a written contract, implied contract,
or in some cases even an oral contract. One type of
claim related to a breach of contract claim is a claim
of “Promissory Estoppel.” An employee may allege
promissory estoppel when the employer makes a false
statement to the employee, and the employee relies on
what was told to him or her in good faith, to his or her
disadvantage.
Similarly, an employee may allege a
breach of the “Covenant of Good Faith & Fair Dealing”
in certain situations. It is generally assumed that
people will act in good faith and deal fairly without
breaking their word, using shifty means to avoid
obligations, or denying what the other party obviously
understood. A claim for a breach of this covenant is
usually brought when one party claims technical excuses
for breaching the contract or using the specific words
of the contract to refuse to perform when the
surrounding circumstances or the apparent understanding
of the parties were to the contrary. |
