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

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

Federal Law

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

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

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

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

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 19 th Century sense, such as “the Hebrews”

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

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

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