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.
(Advertising Material)
DECEMBER 2018
Inside This Issue
1. New Law Mandates Illinois Employers Reimburse Employee Expenses
2. Illinois Human Rights Act ("IHRA") Amendments
3. Equal Pay Act Amendments
4. Paid Breaks for Nursing Mothers
5. Employers Working in Chicago Faced with New Agency
6. Illinois Court Rules Bonuses Can Be a Proper Claim Under Illinois Wage Act
7. Emailing Employees to Notify Changes In Their Employment May Be Acceptable
8. When Does a CBA Trump The Illinois Wage Payment and Collection Act
New Law Mandates Illinois Employers Reimburse Employee Expenses
Illinois Wage Payment and Collection Act (“IWPCA”) was amended to require Illinois employers to reimburse employee expenses for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” “Necessary expenditures” is defined as “all reasonable expenditures or losses” the employee incurs in performing job duties and which primarily benefit the employer. Effective January 1, 2019, “[a]n employer shall reimburse an employee for all necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer.”
To qualify for the reimbursement employer must have authorized or required the employee to incur the expense; the expense request must be submitted within 30 calendar days along with proper documentation; and if documentation is lost, the employee must provide a signed written statement in lieu of a receipt.
The reimbursement includes IRS mileage for driving on behalf of the employer and cellphone reimbursement when employees are required to use their phone for work and internet for computer use at home.
Employers should adopt a policy which places limits on certain expenses such as a maximum of $0.20[1] per minute for cell phone or internet use. Other expenses would include hotel expense, business lunch expense (exclude alcohol). A policy should also have a maximum of time an employee has to submit a claim such as 60 calendars.
Excluded from employer reimbursement is employee’s negligence, normal wear, and theft, unless the theft was a result of the employer’s negligence.
The statute does not answer what is considered necessary and how much reimbursement is considered unlawfully minimal. How do you handle unlimited phone and data plans? It is expected that the Illinois Department of Labor will be issuing regulations. What is most important is to establish a written reimbursement policy NOW. If you need help establishing a policy call me.
[1] $.20 is a suggested amount but employers can develop their own formula.
Illinois Human Rights Act (“IHRA”) Amendments
Effective January 1, 2019, charging employees can opt out of the Illinois Department of Human Rights (“IDHR”) investigative process.
Charging parties now have 300 days from the alleged violation to file a charge with the IDHR. These amendments to the Human Rights Act are likely to increase employer litigation costs by allowing employees to go directly to the circuit courts for relief.
The amendments also update the posting and notice requirements of the IHRA to include specific information about being free from sexual harassment and directs that employers must post a notice issued by the IDHR and most importantly to include the same content covered in the notice in employer handbooks.
Equal Pay Act Amendments
Effective January 1, 2019, the Illinois Equal Pay Act (“IEPA”) expands the statute to cover pay discrimination between African Americans and non-African Americans. In other words, the amendment prohibits employers from paying African Americans less than non-African American employees who are performing “the same yet substantially similar work.” The prior law was limited to equal pay between males and females.
Paid Breaks for Nursing Mothers
Effective August 21, 2018, Illinois employers are now required to pay for “reasonable” break time when expressing breast milk no matter how long it takes or how often needed to occur. There is now a one year limit after the birth. The break time “may” run concurrently with other breaks. There is an “undue hardship” standard for employers for non-compliance, but this is a very high standard to meet.
Employers Working in Chicago Faced with New Agency
The Office of Labor Standards (“OLS”) was created beginning January 1, 2019 to investigate employee complaints under the city’s various employment laws. This may signal increased enforcement and may encourage more employee complaints.
Illinois Court Rules Bonuses Can Be a Proper Claim Under Illinois Wage Act
A United States District Court interpreting the Illinois Wage Payment and Collection Act ruled that earned bonuses are compensable if an employer makes an unambiguous promise to pay a bonus upon an employee’s satisfactory performance of an agreed upon goal. For example, if an employer promised to pay a $25,000.00 bonus if an employee reached a specific sales goal, such a promise is enforceable. It does not make any difference if the employee is no longer employed. Discretionary bonuses are excluded.
Emailing Employees to Notify Changes In Their Employment May Be Acceptable
A United States District Court in Connecticut issued a decision in November which may provide guidance as to the increasing practice of emailing employees regarding change in their employment status. It is important to note that the court found that the employment was “At Will” and the decision might have been different if the employment status is something other than “At Will.”
The employee defended the change by saying she never read the email; however, the court noted that the change was also posted on the company’s website.
When Does a CBA Trump The Illinois Wage Payment and Collection Act (IWPCA)?
In December 2018 an Illinois Appellate Court reversed the Illinois Department of Labor finding that found it lacked jurisdiction to hear an employee complaint under the IWPCA. An employer adopted a policy of deducting money from its delivery drivers’ commissions for beer that stayed on the shelf too long as to become stale. An employee filed a complaint under the IWPCA, but the IDOL found that the issue arose out of the parties’ collective bargaining agreement (“CBA”). The court found that the IDOL decision was erroneous because the only issue involved was the legality of the wage deduction under the IWPCA which mandates that employees must agree in writing to the deduction. The court went on to say the claim did not need reference to or interpretation of the CBA.
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