Employment Law: Employee
Employment law encompasses the rights that employees have in the workplace. Both Illinois and federal law apply in this area. For a discussion of employer-provided benefits, see Employee Benefits Law.
Employment status. The first step in understanding a worker's rights in the workplace is with a determination of the worker's status. The important distinction is between employees and independent contractors. An employee is someone who has been hired by the company, is on the payroll, receives employee benefits, and works only for that company. An independent contractor, on the other hand, is paid by the job, works for multiple clients, and sets his or her own hours. A long list of factors is used to make the determination, which boils down really to control. If the company controls when, where, and how the work is performed, the worker is an employee. If not, the worker is an independent contractor.
The distinction is important because independent contractors generally do not have the workplace rights that employees have. The remainder of this discussion applies to employees, but not to independent contractors.
Right to fire. Employees in Illinois are deemed to be employed at will, which means that an employer can fire an employee for a good reason, a bad reason, or no reason at all. The right to hire someone at will, however, is limited in a couple of ways. First, if the employer and the employee have a contract, any contract terms on the right to fire would supersede the employment at will statute. For example, if the contract said that the employer agreed to hire the employee for one year, the employer cannot fire the employee at will during that year. In effect, the "at will" status of the relationship is suspended for the time that the contract is in effect.
Second, the employer cannot fire an employee if the firing violates statutory protections given to all employees, which we'll discuss in greater detail below, such as protections against race, age, disability, or gender discrimination. If there is no contract and the situation doesn't involve prohibited discrimination, the employer can fire an employee for any reason or for no reason. An employer can fire an employee because it doesn't like the shoes an employee is wearing that day.
Workplace discrimination. In Illinois, employers cannot discriminate against protected groups in any employment practice, including hiring, firing, promoting, transferring, providing benefits to, or laying off employees. The discrimination cannot be based on age, ancestry, arrest record, citizenship, color, creed, disability, marital status, national origin, race, religion, sex, or unfavorable military discharge. Note that employers are free to discriminate against someone who doesn't fall into any of the protected classes. Thus, an employer could discriminate against left-handed people, redheaded people, heterosexuals, people who drive convertibles, or people who wear tennis shoes.
In a few limited areas, certain types of discrimination are allowed. A Catholic organization, for example, can limit a job to Catholic applicants, if the job is related to the performance of religious duties, but not if it is not, such as if the opening is for a janitor. A theater company, for example, casting for the lead in Othello, can limit applicants to black males.
Procedure. An employee who believes that he or she has been the victim of workplace discrimination has a few options. One is to file a complaint with the Illinois Department of Human Rights, which is charged with enforcing the Illinois Human Rights Act. A second option is to file a complaint with the federal Equal Employment Opportunity Commission, which enforces the applicable federal laws. Because the two agencies send the other one any complaints they receive, there is no need to file in both places. In either case, the filing deadline is 180 days from the date the incident occurred.
A third option is to file a civil suit against the employer. The deadline for filing is two years. By filing a complaint with either agency, you do not lose your right to file a civil suit, even if they decide that no discrimination has taken place. In fact, most complainants start with one of the agencies because the process is generally less expensive than filing a suit. Employers are prohibited by law from retaliating against an employee who files a discrimination complaint.
Family leave. In addition to the protections listed above, which emanate mostly from the Civil Rights Act of 1964 and the Civil Rights Act of 1991, there are additional workplace protections available to employees. Under the Family and Medical Leave Act of 1993, employees, both men and women, are allowed to take up to 12 weeks of unpaid leave for the birth or adoption of a child, to receive a foster child, to care for an immediate family member with a serious health problem, or to care for the employee's own serious health problem. The law, which applies only to employers with at least 50 employees, requires that the employer allow the employee to continue to accrue benefits and to return to the same or similar job upon return to work.
Pregnancy. Title VII of the Civil Rights Act of 1964 prevents discrimination against pregnant women. The law requires that employers treat pregnant women just as they would treat any employee with a temporary disability.
Sexual harassment. In addition to prohibiting discrimination based on sex, the federal and Illinois laws also prohibit sexual harassment, which is defined as offensive sexual comments, contacts, innuendo, pictures, or the like in the workplace. Sexual harassment occurs either where sex is used as a tradeoff for a workplace-related event, such as a promotion or a hiring, or the use of the offensive comments, et al. to create a hostile work environment. The standard is whether a reasonable person would find the comments and contact offensive. A victim of sexual harassment can file a complaint with the Illinois Department of Human Rights, the federal EEOC, or the Illinois Human Rights Commission.
Privacy. In the area of privacy, the general rule is that employees have a right to privacy where a reasonable person would conclude that there is an expectation of privacy. There is generally no expectation of privacy where an employee uses an employer-provided device, such as a telephone or a computer. Thus, employers generally have the right to read an employee's private email sent through a company computer.
Wage-and-hour rules. The minimum wage for employees under 18 is $7.25. The minimum wage for employees 18 and over is $7.25. Workweeks are limited to 40 hours. The required overtime rate is one and a half times the regular rate for every hour worked over 40 hours in a week.
The rules do not apply to employees who are classified as exempt employees. An exempt employee is someone who is in an executive, administrative, or professional position and who receives at least $250 per week in salary or fee.
Children under 12 are not allowed to work, except on farms. Students who area 14 or 15 are limited to three hours per day during the school and to eight hours per day while on vacation. Any child who is under 16 must have an employment certificate in order to work.
State work rules. Illinois prohibits any child under 16 from working in certain industries. Minors between 14 and 16 may work after school or on weekends. No minor under 12 may work except for family farm-related work.
Other state labor laws. Illinois has a Displaced Homemakers Assistance Act, which provides assistance to homemakers who want to enter or re-enter the workforce after a long absence. The assistance is in the form of job placement advice and counseling services.
Illinois also has a Right to Privacy in the Workplace Act, which forbids an employer from discriminating against an employee who uses lawful products off the premises during nonworking hours. Thus, an employer that frowns on alcohol consumption cannot fire or otherwise discriminate against an employee who drinks legally on his own time. An exception is made for nonprofits whose primary purpose is to discourage those products. Thus, a temperance union could discriminate against an employee found drinking after hours.
Illinois has a second workplace privacy-related law that prohibits an employer from inquiring whether a prospective employee has ever filed a workers' compensation claim. Thus, an employer, following a job interview with a prospective employee, cannot pick up the phone and calls the employee's previous employer to find out if a workers' compensation claim was ever filed.