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Temporal Proximity and Retaliation Claims

The Equal Employment Opportunity Commission (EEOC) prohibits employers from taking retaliatory action against employees for exercising their legal rights when making complaints about illegal actions. For example, if an employee complains about sexual harassment or race discrimination in the workplace to their supervisor, the employer may not retaliate or take any adverse action to punish the employee for making the complaint.

Of course, most employers are aware of the general rules that prohibited retaliation. As such, bad acting employers rarely admit to retaliation. Instead, they make up a pretextual reason to take action against the employee. This can make retaliation claims challenging. Here, our experienced Chicago workplace retaliation lawyers discuss temporal proximity, a concept that can be used to help link an adverse action to a protected activity.

 

What is Temporal Proximity?

The legal term ‘temporal proximity’ simply refers to the closeness in time of two events. This concept can be very important in many retaliation claims, as employers will frequently attempt to cover their tracks by trying to disguise their retaliation as legitimate discipline, or claim the employee had poor performance. For a better understanding of how it works, consider the following example: On July 1st, a female employee at a Chicago company files a sexual harassment claim against her boss. Notably, she has worked at this firm for more than ten years without problems. On July 21st, she is fired from the company for “poor performance”. Certainly, poor performance is a valid reason to terminate a worker, if true. However, as these two events are very close in time, there is strong implication that the termination was based on her complaint of harassment.

 

Temporal Proximity is Rarely Dispositive

 In the vast majority of cases, temporal proximity is simply one piece (albeit an important piece) of the larger puzzle. It typically must be put together with additional evidence. But the closer the employee’s protected activity is to the adverse action, the more likely the court will find that termination was based on the protected complaint, and that the claims of performance were only a pretext made up by the employer. If you believe your employer made up a pretextual reason to take adverse action against you, you need to speak to an experienced attorney immediately.

 

Contact Our Office Today 

At Goldman & Ehrlich, our Chicago employee rights attorneys have extensive experience handling retaliation claims in both Illinois and Southwestern Michigan. If you need help with your retaliation claim, please call us today at 312-332-6733 or contact us directly through our website to request your fully confidential initial legal consultation.

312-332-6733

How Telecommuting Affects Employment Law

Telecommuting increased close to 80 percent just between 2005 and 2012, and an estimated 30 million people now report working from home at least once per week. App Developer Magazine featured an interesting article recently on how dynamics in the workplace are changing as more and more people are telecommuting, and how this changes employment law as it relates to employer-employee relationships and established legal policies.

In fact, there are legal benefits to having some salaried employees telecommuting instead of working out of the office, however, it’s also important to realize that allowing for telecommuting does change certain legal policies for employers.

Security Issues

As more and more employees are working remotely, in all likelihood, many of them are going to be accessing work networks from their home computers. It is very important that if a telecommuting employee does access the network remotely that there is an established security system protecting the company’s files and sensitive information, including the appropriate passwords, encryption, and network firewalls. As of 2014, the average cost of a data breach reached close to $6 million.

Confidentiality

It is also important that all telecommuting employees have signed a confidentiality and/or non-disclosure agreement in order to ensure that the company’s privacy has been maintained and that, if not, there is a legal recourse to bring an action against the employee and any other offending parties. In addition, many companies ensure that they establish network access for the telecommuting employee, but do not ensure that, in turn, they can retrieve files from the telecommuting employee in case anything should happen. Make sure that you are able to do this; an easy way might be to have a policy requiring that the employee saves any and all work to the same network device (such as the company server) instead of the individual computer hard drive of the computer they are working on.

What about Non-Exempt Employees?

While most telecommuting employees are salaried and exempt from overtime (because they are not subject to overtime and thus there is less concern about reporting working hours), if you do have non-exempt employees work from home, ensure that here is a reliable way to keep track of worked hours and that you have a policy in place beforehand that restricts the number of hours they can work in general.

Liability and Workers’ Compensation

While there are always policies pertaining to injuries in the workplace, ensure that there is a similar policy for any work-related injuries for those working from home.

Discrimination

Interestingly, having employees work remotely decreases the potential for discrimination because, arguably, the employee is more likely to be judged based on work product rather than potentially discriminatory factors. However, at the same time, employers need to ensure that having an employee work remotely cannot be legally interpreted as being discriminatory in and of itself (i.e. the potential that the employer is specifically only having that employee telecommute because they do not want them in the office).

It is also important to keep in mind that there have been instances where an employee claimed that failure to allow them to telecommute at least part-time constituted failure to provide disabled accommodation under the Americans with Disabilities Act.

Contact Experienced Employment Law Attorneys

Goldman & Ehrlich is known for providing excellent legal representation to Chicago-area employers. If you need assistance, contact us today online or call 312-332-6733 and we’ll get started helping you with any employment law issues.

An employee is filing a discrimination claim against her boss

As a boss, you already know the pressure and the stress of running your company. It is a daily battle to make deadlines, achieve goals, motivate employees and provide income for them to feed their families. When one of your employees files a discrimination claim against you, you must address this quickly with an employment law attorney. But there are common sense steps you can take to prevent a discrimination claim from occurring, or create proper protections for your company if a claim is filed.

Documentation

Of highest priority is making sure all employees are consistently treated the same in all actions you take (or do not take), treated consistently by their supervisors and managers as compared to other employees, and maintaining proper documentation of any performance or misconduct issue for all employees. Performance standards for employees should be applied consistently, and should discipline be necessary, apply discipline consistently for each employee engaging in similar acts. Should a discrimination complaint be made by an employee, take the employee’s complaint seriously and investigate it properly to determine what if anything has occurred. Employees are more likely to file a discrimination complaint if they feel their concerns were not taken seriously and properly addressed. Contact an employment law attorney as soon as possible. Good communication among all parties, supervisors, managers, and your employment law attorney, and proper and accurate documentation may help to resolve a matter before it becomes a legal action and leave you in a better position should a lawsuit be filed.

Insurance

There is insurance available for companies to protect against employment harassment and discrimination lawsuits. Employment Practices Liability Insurance (EPLI) is a specific type of liability insurance that is targeted to companies and employers so that they can have protection against liability cases that arises out of standard employment practices. While the cost may seem extensive to protect for “what if” scenarios, peace of mind for the future may be just what you need.

Claims

There is more than one way for an employee to make a discrimination claim against her employer. It is important to know how these claims can be made so you know best how to protect yourself from them.

  • An employee may make a claim to someone employed by the business.
  • The employee might choose to make a claim directly to the Equal Employment Opportunity Commission.
  • Either or both of these methods.

 Chicago Employment Attorneys

When an employee files a discrimination claim against their boss, it is time for an experienced corporate defense attorney to be fighting your side. Contact our law firm today at 312-332-6733 or connect with Goldman & Ehrlich online.

Do I have to sign an employer’s non-compete clause?

Perhaps you are working for a Mobile Phone Service and before hiring you, they ask you to sign a non-compete clause on your hiring contract. This may seem strange though it isn’t uncommon. However, there are some critical things to note about non-compete agreements, in particular for those living in the state of Illinois that is unique compared to most other states.

What is a non-compete agreement?

This agreement is a contract stating that you will not begin work as a competing business nor work for a competitor for a particular period of time, often stated in the agreement, after your relationship with your employer finishes or ends. The reason behind this, is to ensure that you won’t share intimate knowledge of how their business works to competitors or be in a position to steal away clients, other workers, and customers by exploiting the knowledge you received during employment with them.

Rule of Reasonableness Test

The Illinois Supreme court, in the 2011 decision Reliable Fire Equip. Co. v. Arredondo, established what it called a “rule of reasonableness test” to determine the enforceability of a restrictive covenant, with the Court providing that a restraint on trade is reasonable only if it:

  1. is no greater than is required to protect a legitimate business interest of the employer;
  2. does not impose undue hardship on the employee; and
  3. is not injurious to the public.

Your Chicago Business and Employment Lawyers

Create legal policies and contracts of integrity for your employees that protect your business’s’ interests by following federal and state employment laws. Avoid mistakes that could put you at risk, and better serve your business and your employees. Contact Goldman & Ehrlich, today at 312-332-6733, or contact us online to schedule a confidential consultation.

Common Issues with Employment Contracts

When joining a new company, employees often have the power to negotiate over their contract to produce an agreement more favorable to their economic interests, and one that is fair to both sides. Employees may be in a particularly good bargaining position if they are experts or highly skilled in a particular employment field.

While navigating through the various clauses of an employment contract, prospective workers should take note of some of the most common issues with these agreements as they can have long term repercussions on the candidates’ earnings and prospects for advancement. As with most contracts, speaking to an experienced Chicago area employment contract attorney about the situation can greatly benefit the employee.

Compensation

How much one gets paid is almost always the most pressing matter for the individual. However, there are many nuances to compensation, including:

  • Frequency of pay increases;
  • Possibility of signing bonuses for coming aboard a new company;
  • If bonuses will be available; and
  • If a base salary before bonus and commission can be reduced in certain circumstances.

Benefits

Employers often attempt to sweeten an employment offer with benefits. In circumstances where employees are not offered the rate of compensation they expect, they may be able to bargain for certain benefits like:

  • Medical insurance;
  • Disability coverage;
  • Life insurance;
  • Pensions; and/or
  • Stock options.

Scope of employment

The scope of one’s employment can include much more than simply a job title and responsibilities. Included in the scope of employment portion of an employment contract the employer may be able to designate:

  • The place of employment and whether the employee can be relocated;
  • If the employee can be demoted or have their responsibilities reduced or modified; and
  • If the employee will have influence over other facets of the company’s operations.

Grounds for termination and length of contract

How long a contract lasts and under what circumstances it may be prematurely terminated is among the most important of considerations. Employees should take the time to understand whether they are under “at will” employment or if they can only be terminated “with cause” for actions like:

  • Breach of contract;
  • Criminal charges; or
  • Refusal to perform reasonable duties.

Also, the contract may include arbitration and dispute resolution clauses for employee grievances.

Chicago area employment contract attorneys

Before you sign an employment contract, contact the Chicago area employment contract attorneys of Goldman & Ehrlich for a consultation. Our office has years of experience serving clients throughout Cook County, Lake County, DuPage County, Will County, Kane County, and McHenry County.

Are Non-compete Clauses Legal In Illinois?

Along with negotiations over salary and benefits, employees may also bargain over non-compete clauses, which may limit their ability to work for “competitors” should they choose to move on from the company. Prospective employees should understand Illinois has laws pertaining to these agreements and restriction that may make them unreasonable and unenforceable. The ultimate decision of whether the agreement is enforceable often depends on a balancing of many factors. It is, therefore, important that you discuss this with an employment law attorney before taking any action that might violate the agreement, or before signing the agreement.

When examining these clauses, some workers may ask if non-disclosure clauses are legal in Illinois. The answer is generally yes but with certain criteria that must be met. This includes:

  • The clause be no greater in scope than required to protect legitimate business interests of the company;
  • The non-compete agreement may not cause an undue hardship on the employee; and
  • The non-compete clause cannot cause harm to the public.

Furthermore, Illinois courts will generally give consideration to any geographic limitations the scope of the non-compete clause may carry and for how long. These considerations are not specifically listed in Illinois contract laws but they may fall under the undue hardship provision of the statute.

Am I supposed to be paid under a non-compete clause in Illinois?

Illinois law holds that the employee must be compensated (consideration) in some way in exchange for agreeing not to take his or her talents and inside knowledge of a company to a competitor. Illinois will also give special consideration to this aspect of the clause and determine if it is adequate for the employee.

The latter provision makes Illinois unique amongst states enforcing these agreements. In fact, inadequate consideration is fatal to claims by the employer and among the most important aspect of a dispute a court will examine before all else.

Are there time limits to Illinois non-compete clauses?

In Illinois, the employee generally must be employed by his or her company for at least two years for a non-compete clause to be valid, unless there is additional consideration provided by the employer. This usually holds true whether the employee leaves on his or her own accord or is released by the employer.

Additionally, the length a former employee may be subject to a non-compete clause after his or her departure from the general state guidelines for the agreements. Typically, there should be some end date where an employee may work for a competitor.

Chicago employment attorneys

If your employer asks you to sign a non-compete clause as part of your consideration for employment, contact the Chicago employment attorneys of Goldman & Ehrlich for a consultation. Our attorneys will examine the claim and help you advocate for the best interests of you and your career.

What Should I Do If I Am Considered To Be Insubordinate At Work For Opposing Discrimination?

All of us expect to be treated with dignity and respect at our place of employment and state and federal laws protect us from discriminatory action by our employers. Employment laws prohibit discrimination on the basis of race, color, sex, national origin, age, disability, and genetic information.

Workplace Discrimination

Furthermore, employees may not be retaliated against for making good faith claims against these forms of discrimination or refusing to participate in activities that promote them. Unfortunately, some employees face retaliation for standing up for their legal rights and opposing workplace discrimination.

If you believe you were retaliated against for standing up for your rights, you will need to prove that you took part in a protected activity, suffered a negative action, and there was causation between the two. Speaking to a qualified Chicago employment attorney from the onset of your case can help give you the best chance

Engaging in protected activities

Standing up to discrimination is a protected activity under federal law. Employees may do this by either communicating the opposition to their employer or filing a claim with a state or federal employment agency. Your communication should make clear that you feel the employer’s actions or requests are discriminatory.

To prove you engaged in a protected activity, you will want to save any communications between you and your employer about the event. Many times, employers may assert the employee took part in an activity not covered by state or federal law but having this communication can demonstrate the contrary.

Negative activity

If you received a negative performance review, write up, or other written disciplinary action around the time of your protected activity, you will need to save this documentation. While this documentation may not specifically say you were reprimanded for making a complaint, you may be able to show a link between the two.

Save any other communications like emails, memos, or electronic communications you believe show your employer. Take notes to document daily engagements you believe may show a pattern of retaliatory behavior so your attorney can help investigate these claims. The notes should include all relevant “who, what, where and when” information, and possible witnesses.

Chicago employment attorneys

If you believe you were retaliated against by your employer for opposing or standing up to discrimination in your workplace, contact the experienced employment law attorneys of Goldman & Ehrlich for a consultation about your case. For over 25 years, our dedicated attorneys have helped employees in their times of need and hold wrongdoers accountable.

 

 

 

 

Illinois Secure Choice Savings Program Delayed Until Early 2018

In 2017, more than 200 new laws are set to take effect in Illinois, many of them aimed at improving the quality of life for workers across the state and aid in their upward mobility in a rapidly changing economy. However, one law slated to take effect early this year has been pushed back to 2018 to allow businesses to prepare and adapt to its coming implementation.

The Illinois Secure Choice Savings Program (ISCSP) will require companies open for business for at least two years with 25 or more employees to offer employees a retirement plan using Roth IRAs or access to state retirement programs. Workers need to understand the impending law as they will automatically be enrolled in the program and see deductions made unless they specifically opt out of the system.

The ISCSP applies to private sector employees, and the employer must furnish workers with information packets that include various investment options as well as the risks associated with them. Employees must pick an IRA to put deductions in and if they do not, the employer must take 3 percent of the worker’s income and place it into a state-run investment program.

Employers do not have to match any employee contributions and may also set up their own employee-retirement savings programs like a 401(k) or a Savings Incentive Match Plan for Employees (SIMPLE) plan. Employers covered under the ISCSP who do not comply with the law could also face penalties from state regulators, making compliance all the more important.

Illinois employment lawyers for businesses

Employers are expected to comply with and understand the ISCSP and other new business laws coming into effect this year and the years to come. As with other matters of strict liability, employers cannot claim ignorance of the law as an excuse for failing to implement mandates under various provisions.

To help avoid costly civil penalties and time-consuming investigations, businesses should strongly consider speaking to an experienced Illinois employment lawyer for businesses. With over 25 years of experience helping business owner comply with the law, the dedicated attorneys of Goldman & Ehrlich know what it takes to help companies avoid costly mistakes.

For a consultation about your business and how you can keep your employees protected, contact our office. Our Illinois employment lawyers serve clients throughout Chicago, Cook County, Lake County, DuPage County, Will County, Kane County, and McHenry County.

New 2017 Illinois Employment Law Gives Ex-Offenders Opportunities

New legislation recently took effect allowing certain ex-offenders to work in state institutions like schools and park districts a certain amount of years after their conviction and jail terms. Like many other laws taking effect this year, the law is a significant and progressive move designed at strengthening the power workers have to help provide for themselves and their families during difficult economic times.

Furthermore, allowing certain types of ex-offenders into the state workforce can help to break up the cycle of poverty and recidivism plaguing men and women who have otherwise served their debt to society. Ex-offenders are especially at risk for many of the pitfalls any person can be susceptible of in a volatile economy and should be given an opportunity to re-enter society and be able to provide for themselves and their families.

Other new laws taking effect this year also allow ex-felons to apply for state licensing to work in various industries their criminal record would otherwise have denied. Some of the 118 occupations for which ex-felons can now apply for licensure include cosmetology, hair and nail care, roofing, and funeral services.

Can my employer check my criminal background in Illinois?

While allowing ex-offenders to apply for state jobs and licensures is a huge step towards rebuilding lives and communities, Illinois also bars private employers from looking into the criminal backgrounds of applicants deemed qualified to perform the job. Under the Job Opportunities for Qualified Applicants Act (JOQAA), employers and employment agencies cannot ask qualified applicants about their criminal background until a conditional offer is extended.

Individuals should also know there are exceptions to the JOQAA, which can still bar felons from gaining employment with certain organizations. The three categories of job applicants which can still be denied employment due to criminal backgrounds include:

  • State and federal jobs requiring background checks by law;
  • Companies employing workers under the Illinois Emergency Medical Systems Act; and
  • Jobs needing a standard fidelity bond or an equivalent bond.

To help protect workers, the Illinois Department of Labor enforces the law and may impose penalties on organizations violating the law. Furthermore, employees who feel they may have been illegally discriminated against due to their criminal background may also discuss their case with an experienced Illinois employment lawyer to recover compensation, if available, under various state laws.

Reach out to us today for help

Contact our office to speak to one of the qualified Illinois employment lawyers of Goldman & Ehrlich. Our office serves clients throughout Chicago, Cook County, Lake County, DuPage County, Will County, Kane County, and McHenry County.

Orland Park Man Sues Chick-Fil-A After Restaurant Denies Employment

An Orland Park man recently filed an employment discrimination lawsuit against an area Chick-Fil-A restaurant alleging the fast food company denied him employment due to his disability despite references vouching for his capabilities. The claim, filed on December 23, 2016, claims the plaintiff’s work coach spoke with the restaurant about hiring the man but was told the eatery was not interested in hiring a person with the plaintiff’s disability.

According to the complaint, “The branch manager responded that Chick-Fil-A was not interested in hiring people with disabilities. When the job coach reiterated that she thought (the plaintiff) would do a good job, the branch manager stated that people with disabilities would not be able to succeed at Chick-Fil-A.”

The allegations, if true, could possibly constitute a violation of the federal Americans with Disabilities Act (ADA) and carry substantial penalties, including paying restitution to the plaintiff. While the plaintiff’s autistic condition may prevent him from doing certain things, he and his life coach believe if an employer makes certain reasonable accommodations, as required under federal labor laws, the plaintiff could perform his duties adequately.

What is the Americans with Disabilities Act?

Passed in 1990, the Americans with Disabilities Act “prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities.” Under the ADA, employers must make reasonable accommodations for workers with disabilities and make facilities like bathrooms and entrances accessible to differently abled persons.

Employers who are sued by the government for not complying with the ADA may be subject to substantial civil penalties, even for first-time violations if egregious enough. Maximum penalties for first-time violations may be as high as $55,000 to $75,000 and subsequent violations may be as high as $150,000. Individuals who sue the employer can recover all lost wages and benefits, be reinstated with appropriate accommodations, compensatory damages, and be reimbursed for their legal fees.

One of the most common myths associated with the ADA is that compliance can cost businesses too much, either leading to loss of productivity or refusal to consider otherwise qualified applicants. The truth is that only three percent of accommodations cost businesses more than $1,000 and the overwhelming majority cost substantially less to help workers thrive in the workplace.

Contact our Chicago employment discrimination lawyers for help

If you believe your rights were violated under the ADA or another state or federal labor law, contact our office to discuss your case. For over 25 years, the dedicated Chicago employment discrimination lawyers of Goldman & Ehrlich have helped employees in their times of need and hold wrongdoers accountable.