Author: Quinton Osborne

Recent Changes to the Illinois Gender Violence Act Strengthening Protections in the Workplace

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Illinois has taken a significant step forward in the fight against gender-based violence with the recent amendments to the Illinois Gender Violence Act (IGVA). These changes aim to enhance protections for employees who have experienced gender-based violence, ensuring a safe and inclusive work environment.

  1. Expanded Definitions

The revised IGVA broadens the scope of what constitutes gender-based violence. It now includes not only physical acts but also psychological, emotional, and economic abuse. This expansion recognizes that violence can take many forms and ensures that victims are protected regardless of the type of abuse they have endured.

  1. Protections for All Employees

Previously, the IGVA only applied to employees who worked for an employer with 15 or more employees. However, the recent changes have eliminated this threshold, extending protections to all employees, regardless of the size of their employer. This means that even those working for small businesses can seek redress under the IGVA if they experience gender-based violence.

  1. Reasonable Accommodations

One of the significant additions to the IGVA is the requirement for employers to provide reasonable accommodations to employees who are victims of gender-based violence. Reasonable accommodations may include changes to work schedules, relocation of the employee’s workspace, or implementing additional security measures. These accommodations aim to ensure that employees can continue their work without fear of retaliation or further harm.

  1. Confidentiality and Privacy

To protect the privacy and confidentiality of victims, the IGVA now prohibits employers from disclosing information related to an employee’s status as a victim of gender-based violence, unless required by law or with the employee’s consent. This provision encourages victims to come forward and seek help without the fear of their private information being exposed.

  1. Training and Awareness

The amendments to the IGVA emphasize the importance of education and awareness in preventing and addressing gender-based violence in the workplace. Employers are now required to provide training to their employees on recognizing and responding to gender-based violence. By fostering a culture of understanding and support, workplaces can become safer and more inclusive environments.

Conclusion

The recent changes to the Illinois Gender Violence Act represent a significant advancement in protecting employees from gender-based violence. These amendments expand the scope of the law, ensure equal protection for all employees, mandate reasonable accommodations, safeguard confidentiality, and promote education and awareness.

At Osborne Employment Law, we are dedicated to helping employees understand their rights and navigate the complexities of employment law. If you have questions about the Illinois Gender Violence Act or need assistance in addressing gender-based violence in your workplace, our experienced attorneys are here to provide guidance and support.

Appellate Court Invalidates Restrictive Covenant

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Yesterday, the Illinois Appellate Court affirmed a very important restrictive covenant principle. In Midwest Lending Corporation v. Horton, 2023 IL App (3d) 220132 (May 22, 2023), the Court invalided a non-compete and non-solicitation clause on the basis of inadequate consideration.

Like all contracts, restrictive covenant agreements must be supported by adequate consideration. That is, some form of quid-pro-quo. When an employee signs a non-compete, they often do not receive any benefit from signing the agreement other than continued employment. However, this continued employment is not valuable because employees are usually subject to at-will employment, and thus can be fired as soon as they sign the agreement.

Therefore, if the the employer offers the employee continued consideration to sign a non-compete, Courts have ruled that he or she must actually be employed for a period of two years for the agreement to be supported by adequate consideration. This rule was codified under the Illinois Freedom to Work Act, which requires the employee actually work for the employer for two years to be considered adequate consideration. Employers can offer other forms of consideration, such as a bonus, to support a non-compete without having to rely on continued employment to support consideration.

In Horton (a case that pre-dates the Illinois Freedom to Work Act), the employee signed a non-compete and non-solicitation agreement. The employer terminated the employee after seven months. The Court found that since the agreement lacked adequate consideration, it was not enforceable. Although the employer provided employee an offer letting saying he was receiving a bonus for the non-compete, this language was not in the agreement itself.

This case illustrates why it is incredibly important to have Non-Compete attorneys review your employment agreements. If you are seeking review of a non-compete or non-solicitation agreement, contact us today.

Paid Leave Now Required for Most Illinois Employers

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Changes are coming in 2024 with the enactment of the Paid Leave for All Workers Act. The law requires employers to provide certain paid leave to Illinois employees, something that has never been required before.

Most importantly, the legislation requires employers to provide employees 40 hours of paid leave during a 12-month period. Employees are entitled to begin using their leave within 90 days following the start of their employment. If the leave is foreseeable, an employer may require the employee to provide 7 calendar days’ notice. If the leave is not foreseeable (such as a medical emergency), the employee shall provide as much notice as is practicable. The 40 hours of leave must carry over annually, but cannot exceed 40 hours.

When an employee takes leaves under the Act, it may be taken for any purpose. Importantly, an employee is not required to provide the reason for taking leave. Employers are even allowed to ask for supporting documentation or certification to support a leave.

In the event an employer violates the Act, the employee may file a claim with the Illinois Department of Labor. If the employee prevails, the employee may be entitled to actual damages from the violation, compensatory damages, and a penalty between $500 and $1,000. Employees are also entitled to their reasonable attorney’s fees and costs.

Non-Competes in Illinois Illegal if FTC Rule Passes

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New regulations may change how non-completes apply to Illinois employees. On January 5, 2023, the Federal Trade Commission proposed a new rule to ban non-compete clauses. If the Rule goes into effect, it would be illegal for employers to:

  • enter into or attempt to enter into a noncompete with a worker;
  • maintain a noncompete with a worker; or
  • represent to a worker, under certain circumstances, that the worker is subject to a noncompete.

In the event this Rule goes into effect (which remains uncertain), this would immediately allow Illinois employees to work anywhere post-termination. This would be true even if the new employer is a direct competitor of the employee’s former employer. There are only a few states, such as California and North Dakota, that currently ban non-competes altogether.

As it stands, the most important non-compete law that apples to Illinois works is the Freedom to Work Act, 820 ILCS 90. The Act, which applies to all non-competes entered after January 1, 2022, prohibits non-competes for employees earning less than $75,000 per year. It also requires that employees receive adequate consideration to sign an agreement, which cannot solely be the worker’s continued employment. There are a myriad of other statues and caselaw that governs Illinois restrictive covenants.

If you are being asked to sign a non-compete, or are concerned how a non-compete will impact you going forward, reach out to our firm now.

Employers Can Be Liable For Sexual Harassment Committed by Non-Employees

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Most people know that employees are protected against sexual harassment committed by co-workers or supervisors. But did you know that employees are also protected against sexual harassment committed by individuals outside of the company?

Sexual Harassment Law in Illinois

Title VII of the Civil Rights Act and the Illinois Human Rights Act prohibit an employer from discriminating against an employee on the basis of sex. An employer violates this provision the discrimination creates a hostile work environment. To establish a claim, the individual must show he or she was subject to unwelcome sexual conduct, advances, or requests because of his or her sex that was severe or pervasive enough to create a hostile relationship. Thus, regardless of whether the conduct is from a co-worker or someone outside the company, such as a customer, the harassment must be severe and pervasive.

In addition, the individual must show there is a basis for employer liability. If the sexual harasser is a supervisor of the employee, employer liability in Illinois is automatic. However, if the sexual harasser is a co-worker or non-employee, you must show the company was reckless in permitting, or failing to prevent the sexual harassment. EEOC v. Costo, 903 F.3d 618 (7th Cir. 2018). The Employer must know about the harassment and then fail to take reasonable steps to prevent the harassment.

Hewitt v. BS Transportation of Illinois

For example, a plaintiff recently filed a federal lawsuit claiming the employer is liable for sexual harassment committed by a nonemployee. Hewitt v. BS Transportation of Illinois, 2:18-cv-712 (E.D. P.A. Jan. 11, 2019). The Company moved to dismiss the case because no one at the Company committed the sexual harassment. However, the Court denied the Company’s motion, finding it would be equally illegal for a non-employee to commit sexual harassment so long as the above elements are met.

If you are victim to sexual harassment, regardless of source, contact an employment attorney immediately.

How to Make an Employment Complaint

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My friend Branigan Robertson made the below video on raising effective workplace complaints while avoiding retaliation. He also writes about it here.

All of these tips are great, and they apply equally to Illinois employees. Tip number six is especially important: send a written complaint. Unfortunately, potential clients tell me all too often that they only complained about illegal conduct in-person or on the phone. Unfortunately, judges give these non-written complaints very little weight. Even more unfortunate, individuals who still work for the employer often have a different “memory” than you. Thus, if you make any complaint, it needs to be in writing. A simple email will do the trick, and you can print out a copy of the email for your records.

In the unfortunate event you need to make a workplace complaint, make sure to follow these tips. When in doubt, contact an experienced employment attorney.

The Size of the Employer Matters

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In order to bring an employment lawsuit, sometimes the employer must have a minimum number of employees to bring a claim. For example, under the Age Discrimination in Employment Act (ADEA), the law that prohibits age discrimination and retaliation, the employer generally must have twenty or more employees. 29 U.S.C. § 630(b).

The Supreme Court recently agreed to hear a case to decide if employers with fewer than twenty employees can be considered “employers” if they are a state or political subdivision of a state. It is unclear if the political entity must also have twenty or more employees. The Seventh Circuit, which includes Illinois, found the state or political subdivision of a state must also have twenty or more employees. Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7th Cir. 1986).

Many other laws require a company to have a minimum amount of employees to bring an employment lawsuit, such as wrongful termination. To bring a claim for most forms of discrimination (other than age) under federal and Illinois law, the employer must have at least fifteen employees. However, under claims for disability discrimination, pregnancy discrimination, and sexual harassment under Illinois law, there is no minimum amount of employees. To bring a claim under the Family and Medical Leave Act, the employer must have fifty or more employees.

If you think you have a legal claim against your employer, contact an experienced employment attorney to learn if you may have a case. The right attorney should know which laws apply to your specific case.

Are You Entitled to Severance?

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Individuals often ask me if they are entitled to severance benefits after being terminated. Severance benefits are a lump sump payment to the employee which usually require the employee to sign an agreement waiving all potential legal claims against the company. Illinois law does not require employers to pay severance to terminated employees. However, there are some employees legally entitled to severance pay.

Contracts that Guarantee Severance

The exception to this general rule is when the company has contractually agreed to provide severance  if the employee is terminated. There are two common situations where employers offer these types of employment agreements. First, these types of contracts are sometimes provided to executive-level employees. The promise of future severance may help entice an employee to join the new company, or convince an existing employee to remain with the company.

Second, these types of contracts are common when a company is in the process of merging with a bigger company. In these situations, employees for the company being bought-out are concerned (often rightly so) they will lose their job in the merger. To ensure a stable transition, the acquiring company will offer employees of the soon-to-be-acquired company a contract guaranteeing severance in the event the employee is terminated. Thus, the employees have an assurance that their job is safe, and in the event of termination, they still will be provided compensation.

Voluntary Severance

Companies are often still willing to pay severance benefits for a variety of reasons. Companies may provide severance benefits as a recognition of service to the company. For instance, some companies have a general policy of giving one week of severance for each year of service. Employers may also provide severance partly because they are concerned the employee may sue the company. To prevent any future litigation, the employer agrees to pay the employee a lump sum payment in exchange for the employee waiving all claims against the company.

Even if the company does not offer any type of severance, a terminated employee may still be entitled to unemployment benefits to ease the burden of losing his or her job. It is important to note that even if you are paid severance, you generally are still equally entitled to unemployment benefits, and the severance payments do not affect your unemployment benefit amount.

If you have been laid off and are presented with a severance agreement (or think you may be entitled to one), it is highly advisable to seek a qualified employment attorney to review your situation. Unfortunately, I have reviewed too many cases where an individual has strong claims against an employer, but is unable to pursue them due to prematurely signing a severance agreement. Contact us today if you are in need of employment advice.

New Sexual Harassment Legislation on Illinois Horizon

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Illinois lawmakers are returning to session this week, and news laws related to sexual harassment are on the agenda. Since the #metoo movement began about one year ago, the House and Senate have been holding hearings to determine what measures can be taken to curb sexual harassment in the workplace. The legislature has not yet identified what laws will be enacted, but we will keep you posted as they are proposed and enacted.

Now is a good time to review the Illinois laws that are meant to protect employees from sexual harassment in the workplace. The Illinois Human Rights Act (IHRA) makes sexual harassment illegal. There are different forms of sexual harassment, such as inappropriate physical interactions and comments, The IHRA defines sexual harassment as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when:

  1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

The sexual harassment provisions of the IHRA apply to ALL employers. This is extremely important because some laws (like Title VII of the Civil Rights Act and the Family and Medical Leave Act) only apply to employers with a minimum number of employees. Any sexual harassment of an employee’s manager or supervisor is imputed to the company. However, if the sexual harassment is committed by anyone else (including a non-employee), the employer must become aware of the conduct and fail to take reasonable corrective measures.

If you are being sexually harassed at work, contact us immediately. There are very short time limitations for bringing claims under the IHRA and related statutes.

A Sexual Harassment Refresher

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It seems every day there are more celebrities accused of groping and sexual harassment. (Here is a running list of stars who allegedly committed sexual misconduct). This has also started a #metoo campaign, where women across the Country are sharing their stories of having to endure inappropriate sexual comments or touching. Unfortunately, sexual harassment is all too common in the workplace, and it has largely gone ignored under the boys-will-be-boys attitude. Thankfully, since the allegations have surfaced against Harvey Weinstein, women and men across the country are getting the courage to confront their abusers. Now is as good of time as any to review laws that protect employees in Illinois from sexual harassment in the workplace.

What is Sexual Harassment

In order to show sexual harassment (or #metoo movementa hostile work environment), the employee needs to show (1) she was subjected to unwelcome sexual conduct, advances, or requests, (2) because of her sex, (3) that were severe or pervasive enough to create a hostile work environment, and (4) that there is a basis for employer liability.

Often the biggest issues is determining whether the conduct was severe or pervasive. As a general rule, is there is uninvited physical conduct, likely only one instance is enough to be considered severe and pervasive. Alternatively, if the employee is subject to vulgar banter, or inappropriate sexual comments by co-workers, it will likely need to continue for a period of time to be deemed pervasive. Whether the conduct will be deemed severe or pervasive will depend on the frequency, its severity, whether it is physically threatening or humiliating, and whether it interferes with the employee’s work performance.

Quid Pro Quo Sexual Harassment

There is also quid pro quo sexual harassment, which is all too common. This occurs where submission to sexual demands is made a condition of tangible employment benefits, or submission to or rejection of such conduct is used as the basis for employment decisions affecting the individual. This often happens when a supervisor requires a subordinate to submit to some form of sexual conduct in order to be promoted, given a raise, or keep employment with the company. Although this type of sexual harassment might seem more consensual, it is just as illegal and repulsive as all other types.

Time Limitations

Bear in mind that in order to successfully pursue a sexual harassment claim, you or your attorney must first file a charge of discrimination with the Equal Employment Opportunity Commission or the Illinois Department of Human Rights. If filed with the EEOC, the charge must be filed within 300 days of the illegal conduct. If filed with the IDHR, it must be filed within 180 days. In determining the last date of illegal conduct, if there is a violation that continues over a period of time, the employee can obtain relief by linking all acts with the last act that falls within the limitations period.

If you have been subjected to sexual harassment, contact an attorney immediately.