Frequently Asked Questions

I have been terminated from my employment because my boss does not like me, can I sue the company?

In Illinois, employees work under an “at will” statute.  In other words, absent specific acts of discrimination, an employer can fire an employee at any time.  However, if the employee is part of a protected class and is terminated primarily due to being part of that protected class, an employee will have an action against the employer for wrongful termination.  Also, notice is not required by either party for employment that is at-will.

I am a small business, and therefore, I do not need an employee handbook, correct?

Probably not.  The most egregious lawsuits we have seen brought against employers have been in small businesses.  Items that you would never expect to be brought against you as an employer, such as sexual harassment cases, workman’s compensation cases and discrimination cases have brought against the employer, regardless of the size of the employer.  Also know, in many cases, you will not have insurance (such as in discrimination cases) to protect you.  The company will be completely exposed for a claim brought by a disgruntled employee. 

Do I need to have workman’s compensation insurance?

In Illinois, employers are mandated to have workman’s compensation insurance.  Any claim brought against the company, without workman’s compensation insurance, will pierce the corporate veil causing the owners of the company to be personally liable for such claim.  Also, those claims are not dischargeable in bankruptcy.  We highly advise every business to obtain workman’s compensation insurance for their employees.

Can a company fire an employee that is over 50 years old, and not pay them severance?

It depends on the facts of circumstances of the case.  If you are operating your business in an “at will” state, I do not think it is necessary, absent possible allegations of age discrimination, to pay a severance pay to a terminated employee.  However, employers generally find other reasons to pay severance to workers that are terminated or laid off with no fault of their own.  It is done on a case-by-case basis.  However, many times we see employers providing severance payments in consideration of workers waiving any rights the workers would have for future claims against the company for discrimination purposes.  There are specific considerations involved to have an enforceable severance and release agreement, and thus, it is recommended that you speak to an employment law attorney.

Are restrictive covenants, and covenants not to compete, upheld in court?

In Illinois, the answer is yes.  The courts will examine the exact language of the covenants not to compete but generally, if the duration (time limit) and the geographical restrictions (mileage) are reasonable, the courts will enforce the restrictive covenant.  Depending on the language in the agreement, a court has the discretion to make modifications to the agreement if it seems reasonable to find enforcement of the agreement.  Generally, the agreement must be signed in conjunction with some benefit being provided to the employer so there is “just and adequate consideration” for the execution of the agreement.

Am I an employee or am I an independent contractor?

Since you are asking the question, your employer is probably treating you as an independent contractor.  The easiest way to begin the process is to review an IRS Form W-9 and follow the questions to determine whether or not you are “independent” enough from the employing unit to consider you an independent contractor.  All the questions really focus on “control,” whereby if the employing unit controls your time, your tools of your trade, your assignments, and the use of your time while being paid, you are probably an employee.  Alternatively, if you are being paid just for the final product and the employing unit has no control of your time, tools of your trade, costs or the methodologies to obtain a final product or service, you are probably an independent contractor.  We caution you to also review the standards for the state in which you are operating your business.  There are state thresholds under the state department of employment security that may differ from the IRS standards.

Can I work my supervisors fifty hours per week and pay them salary?

The answer is, as you know, workers working over 40 hours per week, must be paid time-and-a-half of their hourly wage.  This does not change if they are paid a weekly salary.  The exceptions to this rule only apply to certain levels of management and supervisors.  You cannot just call a rank and file worker a “supervisor” to try to exempt him or her from the wage and hour statutes.  This matter cannot be taken lightly and must be thoroughly researched before a definitive conclusion can be reached on whether or not particular classes of workers are exempt from the wage and hour rules.

Do employers have a right to monitor their employees’ use of the internet and emails?

The U.S. Supreme Court has ruled that employees have very limited rights to privacy in their employers’ computer systems. Employers may monitor websites visited by their employees and may block their employees from visiting certain sites.  Employers have a right to limit their employees’ Internet usage to business-related websites as well. If an employer has a policy requiring that its computer systems be used only for work-related activities, an employer may reprimand an employee who uses its equipment for personal purposes. Finally, emails are considered to be property of the employer if emails are sent using the company’s email system and, therefore, an employer has a right to monitor and read emails using the Company’s email system.

Are there any employment laws specific to Illinois that I may want to know as an employer?

To name a just few…

The Equal Pay Act prohibits employers with four or more employees from paying unequal wages to men and women for doing the same or substantially similar work, except if the wage difference is based upon a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or factors other than gender.

The Prevailing Wage Act requires contractors and subcontractors to pay all laborers, workers and mechanics employed on public works projects, no less than the general prevailing rate of wages (consisting of hourly cash wages plus fringe benefits) for work of a similar character in the locality where the work is performed.

The One Day Rest in Seven Act, as its name implies, allows for at least 24 hours of rest in every calendar week. A calendar week is defined as seven consecutive 24 hour periods starting at 12:01 a.m. Sunday morning and ending at midnight the following Saturday. Under this Act, employers may ask IDOL for a relaxation of this requirement. If IDOL grants a relaxation, it requires a statement from the employer demonstrating that all employees who will be working seven days in a row are in fact volunteers.

The Industrial Homework Act regulates the processing or assembling of products in the home when parts or materials are supplied by an employer. The law prohibits certain types of manufacturing and requires registration of employers and certification of employees.

What are some preventive measures an employers can implement in an effort to prevent sexual harassment in the workplace?

A company can minimize the number of sexual harassment claims by:

  • Drafting and publicizing an anti-sexual harassment policies.
  • Implementing a procedure for employees to follow if they feel they have been the victim of sexual harassment, and;
  • Conducting company-wide sexual harassment prevention training.