Wednesday, December 18, 2019

Tic Toc Make Sure Salaried Employees are “Clocking” IN and OUT!


Merry Christmas! Thanks to a client who informed me of a new requirement she was made aware of at an Employment Law update training event last month, I recently research said notification and unbeknownst to me, it was true.  I was shocked because in my humble opinion it conflicts with the Federal Fair Labor Standards Act.  However, we do things a bit different here in the Land of Lincoln.  So keep reading this "Just in Time" notification that will give owners, executives, HR professionals, managers, and supervisors a holiday treat to add to your daily to do list at work!

Surprise, surprise, surprise there’s another new law to follow! Unfortunately, one that has been in affect for some time now but has not received much notice and was slid in right under our HR noses! Not once but TWICE!

The Illinois Department of Labor established new regulations, “Payment and Collection of Wages or Final Compensation – Records and Notice of Requirements” in August of 2014 that require employers to document time worked for each employee regardless of their status as either an exempt administrative employee, executive or professional. These regulations were reinforced in the 2019 amendment to the Illinois Minimum Wage Law (820 ILCS 105/8).

The specific requirements are: Employers must make and maintain records for three years which contain:
ü    the name, address and occupation of the employee
ü    hours worked each day in the work week
ü    the rate of pay
ü    copies of the notice given to the employee at the time of hiring reflecting their rate of pay
ü    the amount paid each pay period and all deductions made from wages or final pay
ü    Any employer that provides paid vacation to its employees must maintain records showing the number of days earned for the year and the dates on which the days were taken and paid.

Failure to maintain these records may impede an employer’s ability to defend wage and hour claims. If an employee files a wage claims with the Department of Labor, they may not be denied recovery of wages or final compensation on the basis that they are not able to prove the exact extent of uncompensated work or final compensation. The employee must only produce sufficient evidence to demonstrate the amount and extent of work or time earned as a just and reasonable inference.
In addition to losing a wage claim, any employer who fails to keep records as required under the Illinois Minimum Wage Act or to furnish them to the Illinois Department of Labor when requested is guilty of a Class B misdemeanor (820 ILCS 105/11). The penalty for a Class B misdemeanor is up to 180 days in jail and/or a fine of up to $1,500.

Because these new regulations were adopted without fanfare, many employers may be in non-compliance. Due to the repercussions of not following these regulations, employers should take immediate steps to ensure that they are tracking the hours worked by all of their employees, no matter what position they hold. This can be accomplished by any means the employer finds most convenient, whether electronic or paper.

The one big concern I find with this is that neither law outlines what they mean by “three years”.  Do they mean for the last three years and you can shred previous years?  Similar to the One- or Two-year hiring document retention requirement depending on federal contract compliance status? Does it mean forever and three years post termination like the I-9s? Whichever way you interpret it, my recommendation would be at least the last three years since the current time frame for employees to file complaints against a company in Illinois is 300 days unless there are other circumstances that expand the statute of limitations such as incidents that fall under Equal Pay Act or Lilly Ledbetter Pay Act, etc.

Thursday, October 24, 2019

What's New for HR in Illinois - 2019

Yesterday I did a report for one of my clients.  Today, I have been asked to talk to a networking group about What's New in HR.  In three weeks I have been asked to talk at a local Chamber of Commerce luncheon about What's Hot in HR.  So whether it new, hot or trending, I though I'd just jot down some thoughts I and several #HR friends had from a crowdsourcing post.

Let's start out with what is top of mind for me and my clients:

  1. SALARY HISTORY BAN: Don’t Ask for the Salary History of ANY applicant for employment of any position in Illinois effective last month.  This affects all employers regardless of size and if you decide not to follow the law then an applicant can come after you for up to 10k for damages.  Why? Asking perpetuates an already unequal pay issue for women who currently make 78 cents to every man's dollar or the same job with the same qualifications.
  2. SEXUAL HARASSMENT TRAINING FOR ALL EMPLOYEES IN ILLINOIS. Every employer in the state of Illinois will have to train all their employees annually  on sexual harassment prevention starting 1/1/20.  Specifically, the training must cover the following and if they do not there could be civil penalties up to $5k per offense.
    • Define sexual harassment;
    • Provide examples of prohibited conduct;
    • State that it is the employer’s responsibility to prevent, investigate and address sexual harassment; and
    • Summarize federal and state laws addressing sexual harassment, and available remedies for violation thereof.
  3. MINIMUM WAGE x3 IN ONE YEAR.  Next years double increase of minimum wage is going to hit employers not once but twice.  January 1 the minimum wage increases from 8.25 to 9.25 ($1) and in July it goes up another 75cents to $10 per hour.  Not to mention in six more months one year from the first increase it goes up another dollar to $11.  This puts Illinois among the 10 highest minimum wage states in the country.  That is an increase of $2.75 all in one years time.  Have you thought about how this is going to affect the rest of your staff and what type of compression pay issues it will cause? 
  4. POSITIVE FOR MARIJUANA DOES NOT = RESCINDED OFFER OF EMPLOYMENT: Don’t Test for Marijuana for hire effective 1/1/20 because your wasting your money if you do and you can't use it as a reason not to hire or affect any other condition of employment once hired.  However, you can maintain a drug free workplace which means that after someone is hired and are suspected of being under the influence at work they can be tested.  Of course, all this is up for debate at the upcoming IL Veto Session to be held soon in Springfield.  There are many conflicts with federal DOT and protective services testing requirements.  So while it may on the surface seem to apply to all there are some issues to be resolved.I'd wait till after that session to know for sure what is going to STICK.  
  5. DOL INCREASES EXEMPTION THRESHOLD FOR LOW AND HIGH PAID OVERTIME EXEMPT EMPLOYEES. No position paid less than $35, 568 (plus duties test) can be exempt from making overtime.  This is equivalent to $684 a week (previously $455 a week or $23,660 a year). Conversely, you can exempt any position paid over $107,432 a year (previously $100k a year) and they do not have to pass a duties test.  These totals are without regard to nondiscretionary bonuses or incentive payments.
  6. EXEMPTION DUTIES AUDIT. Just because the salary basis may have been or will be corrected based on #4 above doesn't mean the people you have as exempt (aka salaried) should actually be categories that way.  There is a lot more to salary basis to make a position exempt (see  https://www.dol.gov/whd/overtime/fs17a_overview.pdf). Typically, I find positions in the administrative and professional exemption category incorrect.  It's often based on the perception of what a professional or administrative job is and not based on the facts related to the duties.  The problem with this that an incorrect classification can lead to up to three years back pay for overtime not paid to someone who should have originally been classified as hourly or non-exempt.
  7. W2 EMPLOYEE VS 1099 INDEPENDENT CONTRACTOR MISCLASSIFICATIONS: Both IRS & IL Unemployment have a vested financial interest in whether or not employer classify positions correctly.  Most importantly the employee themselves has the most to loose aside paying their own taxes they could be earning benefits.  Like exemption misclassifications above an employer could be required to go back three years to pay salary and benefits.  I have some clients who are paying employees a stipend that does not even cover minimum wage for employees using their offices, computers, vehicles, etc. and have required hours.  That alone would not pass the 20 question IRS employee vs contractor test: https://www.irs.gov/newsroom/employee-or-independent-contractor-know-the-rules
Others within my network suggested the following which I plan to expand on soon.
  • Artificial Intelligence hot in recruiting -Chatbots
  • Cybersecurity in HR
  • Employee Engagement: Tenure & Peer2Peer Based Recognition
  • Employee Retention
  • Workplace Flexibility
  • Retaliation & Age Discrimination High on EEOC

Tuesday, October 1, 2019

ISERRA Requires Public Employers to PAY for Military Leave

It is important for public employers to understand the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) and how it impacts their obligation to employees who are on a military leave of absence.  ISERRA consolidated the state’s Military Leave of Absence Act, Public Employee Armed Services Rights Act, Municipal Employees Military Active Duty Act, and the Local Government Employee Benefits Continuation Act. 
Much of ISSERA is modeled after the federal Uniformed Serivces Employment and Reemployment Rights Act (USSERA).  However, there are important differences.
Who Is Protected?
  1. All members of the Armed Forces whether active duty, inactive duty or reserve, including the National Guard when performing state duty.
  2. All members of Military Auxiliary Radio System, United States Coast Guard Reserve, Civil Air Patrol and the Merchant Marines when performing official duties in support of an emergency.
  3. Members who are released from military duty with follow-on care by the Department of Defense.
What are Employers Obligations under ISSERA?
1.       During periods of military leave for annual training for employees who are members of a reserve component, public employers must continue to pay full compensation (concurrent compensation) for up to 30 days per calendar year.
2.       During periods of military leave for active service, a public employer must provide differential compensation, subject to the following:
  • Public employees can choose to use their accrued vacation leave with pay in lieu of differential compensation.
  • Differential compensation for voluntary active service is limited to 60 work days.
  • Public employees who have exhausted concurrent compensation in a calendar year must be given differential compensation.
The method for calculating differential compensation is covered in Section 5-10 of the Act.
3.       Employer provided health care must continue to be provided.
4.       A service member who is absent on military leave must be credited with the average of his or her evaluations received over the last three years preceding the leave.  This rating may not be less than the rating that the employee received for the last rating period preceding his or her leave.
Questions about this law and its impact on units of local government can be directed to the Attorney General’s ISERRA Advocate, Thomas Banning at 1-800-382-3000.

Monday, July 8, 2019

Grievances and the Hiring Process

Units of local government have the responsibility to conduct business in the most transparent manner possible.  This includes the hiring process. Applicants for public jobs should feel confident that the selection process was fair and designed so that the most qualified candidate was chosen.  In addition, in some cases internal applicants for vacancies may have appeal rights through the grievance process covered in the applicable collective bargaining agreement (CBA).   It is important to always follow the appropriate article in the CBA that details hiring, so make sure you double check before filling any union covered position. If followed, the chance of having a grievance filed will be diminished.

However, grievances can happen after the selection process has concluded. Both internal and external candidates for positions can file complaints.  External candidates are most likely to file a complaint with the Illinois Department of Human Rights or the Equal Employment Opportunity Commission.


As a result, it is vital to have a well-documented hiring process.  With thorough documentation, management should be able to demonstrate that the candidate who best met the requirements detailed in the position description was selected for the position.

What makes a well-documented hiring process?


·       Current and accurate position descriptions.  Ensuring the accuracy of your position descriptions is the basis for screening, interviewing questions and later, for evaluations.

·       Create interview questions based off the position description.  Questions should:

o   Assess whether the candidate has the required level of job knowledge that is both essential to job performance and constitutes the minimum that must be known prior to entering the position.

o   Determine the extent to which the candidate has, in fact, ever performed the major duties of the position for which she/he is applying.

o   For those jobs with few or only very basic minimum requirements, as well as for jobs with some unpleasant or monotonous working conditions, questions should be prepared regarding the candidate’s understanding of, and willingness to perform the major duties.

o   Be accurate, complete and easily understood.

o   Clearly and strictly job-related and directly linked to the position’s major duties

o   Not be leading in order to avoid biasing a candidate’s response

o   Should be stated in terms of sample position duties, and should be designed to elicit information on job-related behaviors

o   Should be geared to the appropriate complexity level of the position

o   Should be carefully reviewed to eliminate any possible reference to prohibited areas of inquiry.

·       Create a scoring method for the interview process.  A numeric rating enables the calculation of an overall score for ranking purposes. Carefully document the candidate’s response to each question. Write up a justification as to why the final candidate was selected.

Establishing a formal hiring process that is well documented will help ensure that all hiring decisions are based on merit and qualification and will help management demonstrate the reasoning behind hiring decisions should a grievance or litigation ever occur. 

Wednesday, June 19, 2019

HR Legislative Update Covering: Lactation Room, Nursing Mothers, Severance & EMS Rest Exclusion

Several new laws have taken effect in the last year that affect Public Employers primarily.  Please review this legislative update carefully and contact me for any further information you may need to ensure compliance.

P.A. 100-0947 (January 1, 2019) – This Act amends the Counties Code to require that on or before June 1, 2019, every facility that houses a circuit court room shall include at least one lactation room or area for members of the public to express breast milk in private that is located outside the confines of a restroom and includes, at minimum, a chair, table, electrical outlet, and a sink with running water where possible.  This room may be the same space provided to employees. The legislation further requires the Supreme Court to create minimum standards for posting and training of courthouse staff. Construction or renovation of a court facility after June 1, 2019 shall include at least one lactation room or area that is located outside the confines of a restroom and includes, at a minimum, a chair, a table, an electrical outlet and a sink with running water.

The Supreme Court, effective March 11, 2019, has issued minimum standards for the following areas:

Lactation Room/Area: The room shall be a private space and may be the same space used by all employees for this same purpose. The room or area must be completely private so that no one can inside the space, and it cannot be inside a restroom. It must be equipped with a chair, a table and an electrical outlet. This rooms should accommodate a person with a disability.

Posting Notice to the Public: The lactation room posting shall be located at the main entrance and/or building director and any other public entrance or public elevator lobby. The notice should also be posted in larger assembly areas. Signage should be posted directly outside the designated lactation room/area. At these locations, every person entering the courthouse and walking by the room/area will be able to see that a lactation space is available. Signage posted outside of the lactation room/area shall contain the universal symbol of lactation room accessibility in writing and in Braille.

Training: Suggestions for training include a memo to each county department head with a request to advise their employees about the new law and on the location/access to a lactation room/area and who to contact for more information.; education to new employees about the law and location and access to lactation room/area as part of a new employee orientation packet; and incorporating training into departmental meetings involving courthouse staff.

P.A. 100-1003 (July 1, 2018) – This amendment to the Nursing Mothers in the Workplace Act states that an employer shall provide a reasonable break time to an employee who needs to express breast milk for her nursing infant child each time the employee has the need, for one year after the child’s birth.  This break time may run concurrently with regularly provided break times. In addition, an employee may not reduce the employee’s compensation for time used to express milk. An employer shall provide reasonable break time as needed unless it would create an undue hardship as defined by item (J) of Section 2-102 of the Illinois Human Rights Act.

P.A. 100-0895 (January 1, 2019) – This legislation created the Government Severance Pay Act to provide that a unit of government that enters into a contract or employment agreement, or renewal or renegotiation of an existing contract or employment agreement that contains a provision for severance pay with an officer, agent, employee or contract include the following provisions: (1) severance pay may not exceed an amount greater than 20 weeks of compensation and (2) a prohibition of severance pay when the officer, agent, employee or contractor has been fired for misconduct, as defined within the Act, by the unit of government.

P.A. 100-1010 (August 23, 2018) – This legislation amended the Local Records Act to provide that when a unit of local government, school district, community college district, or other local taxing body enters a severance agreement with an employee or contractor because the employee or contractor was found to have engaged in sexual harassment or sexual discrimination, the public body shall publish specified information on its website within 72 hours of the approval of the agreement.

P.A. 100-1067 (August 24, 2019) – This legislation amends the One Day Rest in Seven Act to exclude individuals licensed under the Emergency Medical Services (EMS) Systems Act, who are required to be on call, from the provision of this Act regarding meal periods. 

Tuesday, May 28, 2019

Disciplinary Action up to and Including Termination

My blogging has been pretty sporadic lately! I just finished an overload semester and had a boat load of client work to handle as well. So unpaid work gets pushed aside. I hope to get more regular on this site as time moves forward. Here's a summary of some of the main points related to a program I delivered last week to over 70 management personnel.

Recently, I facilitated a training event in Springfield covering the topic above. The exact wording used in the title can often be found at the end of a personnel or employment related policy reminding employees to follow the rules (i.e. policy) or else! The problem is that many times management doesn't enforce those policies because conflict for anyone is not easy and often avoided at all costs. However, the long-term costs to a company for not enforcing can lead to poor performance, attitude, increased turnover, decreased morale of other employees, unfair or inequity complaints to outside agencies or an attorney. So bottom line grow a backbone and enforce the policies number one!

Number two, it's important to not treat non-union employees like union employees and vice-versa. This is similar to treating salary employees like hourly employees under Fair Labor Standards Act (FLSA). You can lose your overtime exemption status and/or at will employment status respectively if you don't focus on the differences. If you have a contract covering union employees, you should have an employee handbook covering similar topics for non-union employees. When the contract or handbook says you have to go through a disciplinary process, follow it unless the act or behavior is so egregious an immediate firing is warranted and important to protect the safety of the rest of your employees. Don't make the fact that union employees can't be fired the excuse that you just let things go and assume it will work itself out. Most of the time employees need a mediator. They look to management when they can't figure out how to work out the problems themselves.

Finally, it so very important to document all encounters with employees especially those involving disciplinary action up to and including termination. Using a well-developed Corrective Action form, Last Chance Agreement, or Termination Checklist are just a few that we discussed as being important in a typical process. Documentation is important not just for the record but also for memory. Now that Illinois has a 300-day charge filing deadline, it's more importation than ever to document all verbal and written warnings as well as the termination itself. Even voluntary terminations should be documented to avoid unemployment insurance claims. When an employee asks to terminate their relationship with the county ask them to put it in writing.

In summary, think about management like a game of chess.  You have to be strategic and proactive and not reactive and defensive.  I suggest you have each other’s back as managers, follow the company polices and official employment regulations, and document everything when handling any disciplinary action up to and including termination. Have a wonderful summer!