Identifying Labor and Employment Issues Before They Become a Problem for the Client

Identifying Labor and Employment Issues Before They Become a Problem for the Client

Labor and Employment Law for Real Estate Lawyers

The Surprising World of People and Their Jobs

We Will Cover:

•Wage & Hour Issues• Discrimination and Harassment Issues• State Tort Laws• Federal Labor Law• Benefit and Leave Laws• Other Regulatory Schemes• Other Relevant Laws• Constitutional Issues

We Will Not Cover:

•Contracts• Intellectual Property & Trade Secrets•Non-Compete Agreements, and•Myriad other kinds of questions that

might come up, but are not typical

Wage & Hour Issues

Wage & Hour Issues

•Fair Labor Standards Act (FLSA)•Minimum wage standards•Time and a half for overtime

Wage & Hour Issues

•Three exemptions from the overtime requirement:• Administrative• Executive• Professional

Wage & Hour Issues

•Questions that may arise:

Wage & Hour Issues

•Donning and Doffing Issues

Wage & Hour Issues

•Lunch and other unpaid time

Wage & Hour Issues

How Claims Can Add Up

• $26 /hour• $39 /overtime

hour• $19.50 per unpaid

½ hour lunch• $1,950 for 100

employees

Wage & Hour Issues

How Claims Can Add Up• $9,750 per five-day week• $507,000 per year• $1,014,000 per year,

including liquidated damages

•$3,042,000 for three year total• Plus attorney’s fees and

costs

Wage & Hour Issues

Illinois Minimum Wage Law

• Minimum wage is higher than federal• Ill. is stricter

regarding who qualifies for an exemption• Class claims are

different

Wage & Hour Issues

Illinois Employee Classification Act

• Applies to construction• Tendency for employers

to classify employees as independent contractors:• No minimum wage• No overtime• No Social Security

• Penalties for misclassification

Wage & Hour Issues

One Day Rest in Seven Act• Exactly what the name

implies

Wage & Hour Issues

Wage Payment and Collection Act

• Two main issues:• Deductions from

wages—usually you cannot do it• Accrued vacation—

presumption is employee is accruing for next year

Discrimination and Harassment Issues

Discrimination and Harassment Issues• Federal Law

Discrimination and Harassment Issues• Federal Law—Different laws for different

characteristics• Title VII• Race• Color• Religion• Sex• National Origin


characteristics• Age Discrimination in Employment Act of

1967 (ADEA)• Age


characteristics• Americans with Disabilities Act (ADA)• Disability


characteristics• The Rehabilitation Act• Disability, but only with respect to employers

working on federal projects or receiving federal funds


characteristics• Section 1981• Race• Ethnicity if related to “race,” such as Hispanic• Religion if related to “race,” in a 19th Century

sense, such as “the Hebrews”


characteristics• Equal Pay Act• Sex, but only as it relates to pay• No need to prove discriminatory intent


characteristics• Uniformed Services Employment

and Reemployment Rights Act (USERRA)•Military Service, but only as it relates

to jobs and benefits after a leave

Discrimination and Harassment Issues• State Law—Most Bases Covered by The

Illinois Human Rights Act• race, color, religion, national origin,

ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, or unfavorable discharge from military service• Arrests without convictions

Discrimination and Harassment Issues• Procedure• Usually a two-step procedure• Filing with an administrative agency• Equal Employment Opportunity Commission• Illinois Department of Human Rights

• Trial in another forum:• Federal Court• State Court• Illinois Human Rights Commission

Discrimination and Harassment Issues• Procedure—Myriad choices and differences• Federal Court• Notice pleading• Limited Jurisdiction• In some instances limits on damages• Jury from all over the Northern District

• State Court• More exacting pleading standard• Not as friendly to motions for summary

judgment

Discrimination and Harassment Issues

• Class Actions—The real money is in class actions, but:• Dukes v. Wal-Mart makes class-based discrimination

claims difficult

Discrimination and Harassment Issues•Other Illinois

laws:• The Equal Pay Act of

2003 (limited to unequal pay based on sex)

Discrimination and Harassment Issues•Other Illinois

laws:• Illinois Right to Privacy in

the Workplace Act (smoking and other lawful products)

Illinois Tort Law

• Retaliatory Discharge:• For having filed a

Workers Compensation claim• For protesting against

violations of clear public policy (also covered by Illinois Whistleblower Act)

Illinois Tort Law

• Libel and slander (usually in connection with discharge)• Assault and battery• False imprisonment•Negligent hiring•Negligent Retention

Labor Law

• Concerted Protected Activity—Important because it applies to all employers in interstate commerce• Facebook• Twitter

Labor Law

• Representation Questions• Bargaining Unit questions• Unfair Labor Practices

Benefit & Leave Law• Family and Medical Leave

Act (FMLA)• Employment Retirement

Security Act of 1974 (ERISA)• Health Insurance

Portability and Accountability Act (HIPAA)• Consolidated Omnibus

Budget Reconciliation Act (COBRA)

Other Regulatory Schemes

•Unemployment •Workers compensation

Other Relevant Laws• Fair Credit Reporting

Act—Includes criminal background checks, as well as credit

Other Relevant Laws• Fair Credit Reporting

Act—Includes criminal background checks, as well as credit• Worker Adjustment

and Retraining Notification Act of 1988 (WARN)—mass layoffs

Government Employers

•First Amendment•Equal Protection•Due Process

Conclusion

•Although L&E is limited, it is surprising how many different laws apply•Most important service N&L can provide is issue identification

Identifying Labor and Employment Issues Before They Become a Problem for the Client

Documents

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