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

1. Identifying Labor and Employment Issues Before They Become a Problem for the Client Labor and Employment Law for Real Estate Lawyers

2. The Surprising World of People and Their Jobs

3. The Surprising World of People and Their Jobs

4. 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

5. 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

6. Wage & Hour Issues

7. Wage & Hour Issues • Fair Labor Standards Act (FLSA) • Minimum wage standards • Time and a half for overtime

8. Wage & Hour Issues • Three exemptions from the overtime requirement: • Administrative • Executive • Professional

9. Wage & Hour Issues • Questions that may arise:

10. Wage & Hour Issues • Donning and Doffing Issues

11. Wage & Hour Issues • Lunch and other unpaid time

12. 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

13. 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

14. 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

15. 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

16. Wage & Hour Issues One Day Rest in Seven Act Exactly what the name implies

17. 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

18. Discrimination and Harassment Issues

19. Discrimination and Harassment Issues • Federal Law

20. Discrimination and Harassment Issues • Federal Law—Different laws for different characteristics • Title VII • Race • Color • Religion • Sex • National Origin

21. Discrimination and Harassment Issues • Federal Law—Different laws for different characteristics • Age Discrimination in Employment Act of 1967 (ADEA) • Age

22. Discrimination and Harassment Issues • Federal Law—Different laws for different characteristics • Americans with Disabilities Act (ADA) • Disability

23. Discrimination and Harassment Issues • Federal Law—Different laws for different characteristics • The Rehabilitation Act • Disability, but only with respect to employers working on federal projects or receiving federal funds

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

25. Discrimination and Harassment Issues • Federal Law—Different laws for different characteristics • Equal Pay Act • Sex, but only as it relates to pay • No need to prove discriminatory intent

26. Discrimination and Harassment Issues • Federal Law—Different laws for different characteristics • Uniformed Services Employment and Reemployment Rights Act (USERRA) • Military Service, but only as it relates to jobs and benefits after a leave

27. 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

28. 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

29. 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

30. Class Actions—The real money is in class actions, but: • Dukes v. Wal-Mart makes class-based discrimination claims difficult Discrimination and Harassment Issues

31. Discrimination and Harassment Issues • Other Illinois laws: • The Equal Pay Act of 2003 (limited to unequal pay based on sex)

32. Discrimination and Harassment Issues • Other Illinois laws: • Illinois Right to Privacy in the Workplace Act (smoking and other lawful products)

33. 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)

34. Illinois Tort Law • Libel and slander (usually in connection with discharge) • Assault and battery • False imprisonment • Negligent hiring • Negligent Retention

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

36. Labor Law • Representation Questions • Bargaining Unit questions • Unfair Labor Practices

37. 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)

38. Other Regulatory Schemes • Unemployment • Workers compensation

39. Other Relevant Laws • Fair Credit Reporting Act—Includes criminal background checks, as well as credit

40. 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

41. Government Employers • First Amendment • Equal Protection • Due Process

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