Law Offices of Stanley E. Niew, P.C.
attorneys at law
LABOR & CONSTRUCTION LAW UPDATES
These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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AUGUST 2017
Inside This Issue
1. Cook County Finalizes Rules Regarding Earned Sick Leave
2. U.S. Department of Labor Rescinded Its Guidance on Independent Contractors and Joint Employers
3. Employers Should be Aware that Illinois has a Pregnancy Accommodation Act
4. How to Use Letters of Intent in Commercial Real Estate Transactions
5. Seventh Circuit Court of Appeals Clarifies Illinois Vacation Pay
6. Illinois’ One Day Rest in Seven Days Act Interpreted
7. OSHA Again Changes Its Electronic Report Rule
8. USDOL Reinstates Wage and Hour Opinion Letter Process
Cook County Finalizes Rules Regarding Earned Sick Leave
The new Earned Sick Leave law went into effect July 1, 2017. The Cook County Commission on Human Rights has published a model poster which must be posted where covered employees work within the geographic area of Cook County.
A covered employee is one that works at least 80 hours within any 120 day period and performs at least 2 hours of work in Cook County – that includes driving through the County. Employees can earn one hour of sick leave for every 40 hours they work, with a cap of 40 hours paid sick time within a 12 month period. Employees must give seven (7) days’ notice to take the paid leave if reasonably foreseeable.
Employer coverage is only required if you have a place of business in Cook County.
It is not altogether clear how the ordinance will be applied when an employer has multiple locations in and out of the County.
Please note that the City of Chicago has a similar ordinance with some subtle differences and employers must comply with both ordinances.
Both ordinances, employees accrue sick leave at the rate of one hour for every 40 hours worked. Both mandate the employers allow eligible employees to accrue up to 40 hours of paid leave benefits in each 12-month period of employment and the paid leave covers the employees own illness as well as family members.
Employers should review and update their paid sick leave policy.
U.S. Department of Labor Rescinded Its Guidance on Independent Contractors and Joint Employers
The guidance took a wide view of the employment relationship under the Fair Labor Standards Act (FLSA). The rescinded guidance interpreted joint employment status with respect to sharing employees, using third party management companies, staffing agencies and labor providers. It was easy for employers to be found “joint employers” under the guidance. Joint employers are jointly and severally liable for underpayment of wages under FLSA.
The U.S. Department of Labor (USDOL) learned that while the interpretations are rescinded, employer legal obligations under the FLSA have not changed. It seems that the rescission of the interpretation means that the USDOL will not be as harsh on its position for these matters and the USDOL will be guided by the regulations and case law.
Employers Should be Aware that Illinois has a Pregnancy Accommodation Act
The Pregnancy Discrimination Act amended the Illinois Human Rights Act which now makes it a civil rights violation for Illinois employers not to make a reasonable accommodation for any medical or common condition of a job applicant or employee related to pregnancy or childbirth. It is also a violation to deny employment opportunities or benefits or take action against an otherwise qualified applicant or employee based on the need of the employer to make a reasonable accommodation to the known medical or common conditions related to pregnancy.
The standard for employers under the new law is the same for accommodations for persons with disabilities, which is “an undue hardship.” Complaints are made by first filing a charge with the Illinois Department of Human Rights. Remedies include actual damages, back pay, reinstatement, lost benefits, pre-judgment interest, attorneys’ fees and costs and all other relief deemed necessary to make a complainant whole.
How to Use Letters of Intent in Commercial Real Estate Transactions
It is often the practice to prepare a Letter of Intent (LOI) which details some, or even all, of the terms or conditions of a future contract for real estate. Often the LOI may merely narrow the issues for future negotiations.
Buyers and sellers should be aware that LOIs may commit the parties to perform under the LOI. An LOI may be enforceable if the parties intend that the LOI binds them and the LOI sets forth the essential terms of a sale agreement. The LOI must not last more than one year.
The intent to be bound is the most important and cannot be ambiguous about the intent to be bound. Buyers and sellers should be aware that it is fairly simple to prevent enforcement by using words such as “subject to signing a formal agreement.”
The LOI may commit the parties to negotiate in good faith for a complete agreement. Such a clause is generally enforceable.
In summary, set forth all the essential elements of the sales agreement and clearly indicate whether the parties anticipate a formal written agreement or if the LOI is a binding sale agreement.
Seventh Circuit Court of Appeals Clarifies Illinois Vacation Pay
The U.S. Court of Appeals for the 7th Circuit issued a decision interpreting Illinois law regarding vacation pay. The decision makes it clear that there is no requirement in Illinois for employers to provide paid vacation. However, when an employer provides paid vacation, Illinois requires the employer to pay an employee the value of earned but unused vacation time when the employee’s employment ends. That payment is generally required to be made on the next regular pay date following the employee’s termination.
Secondly, Illinois employers can limit vacation benefits to full time employees to the exclusion of part time employees. Lastly, the 7th Circuit addressed forfeiture of vacation benefits. The court gave the following example: “if a full-time employee ceases work in the middle of the year, he receives vacation pay in proportion to how long he has worked that year.” Thus, if an employee works for half of a year, he/she must be paid half the value of vacation pay he/she would have earned working a full year. If the employee works 20% of the year, he/she must be paid 20% of the value of vacation pay he/she would have earned working a full year.
It appears under this case Illinois is permissive in establishing eligibility requirements of vacation policy. Before amending your vacation policy, consult an experienced labor and employment attorney.
Illinois’ One Day Rest in Seven Days Act Interpreted
On July 27, 2017, a Federal district judge interpreting Illinois law made it clear that the One Day Rest In Seven Days is not mandatory. In other words, an employee can voluntarily work seven consecutive days without running afoul of the law. The judge also held that a union labor contract that permitted workers to voluntarily put in seven days in a row is permissible. The way the judge put it, there is “nothing” in the law that “prohibits an employee from voluntarily choosing to forego the 24-hour rest period.”
OSHA Again Changes Its Electronic Report Rule
Initially OSHA issued a press release that the compliance date for requiring most employers to submit their injury and illness data to OSHA electronically was pushed back to December 1, 2017. OSHA announced it launched its website allowing employers to submit their injury and illness reports on August 1, 2017, thus the postponement was rescinded.
USDOL Reinstates Wage and Hour Opinion Letter Process
In 2010 the U.S. Department of Labor (USDOL) abandoned the wage and hour opinion letter process which was in existence for about 70 years.
On June 27, 2017, the USDOL announced that employers and employees can submit questions to the USDOL regarding whether a particular employment practice complies with the law USDOL enforces. The USDOL retains the discretion to respond, but if it does, the guidance can be presented to courts and investigators.
If an employer has a close question as to whether its wage and hour practice complies with the law, it would be good practice to obtain an opinion letter. The submission process is on the USDOL’s website. Consider using competent labor and employment counsel to assist in the drafting.
See: [https://laborandemploymentlawupdate.com/2017/06/29/dol-reinstates-wage-and-hour-division0opinion-letter-process/]
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