Categories
Illinois Department of Employment Security (IDES) Independent Contractor

Watch Out For Minefields in the IDES Worker Relationship Questionnaire: Proving Your Independent Contractors Are Not Misclassified

Watch Out For Minefields in the IDES Worker Relationship Questionnaire: Proving Your Independent Contractors Are Not Misclassified

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Illinois Department of Employment Security (IDES) on Tuesday, October 24, 2017.

If your Company is audited by the Illinois Department of Employment Security (IDES) and you use independent contractors, you will (almost always!) be asked to complete the IDES Worker Relationship Questionnaire for each group or type of independent contractor.

PURPOSE OF QUESTIONNAIRE: The purpose of the Worker Relationship Questionnaire is to elicit enough factual responses from the Company that it becomes clear whether the independent contractors at issue are really independent contractors or employees.

Possibly the trickiest part of filling out the Worker Relationship Questionnaire is deciding how to describe the type of business the Company is in, and the type of business the independent contractor is in, and whether the Company and the independent contractor are in the same course or kind of business. Course or type of business is a crucial part of the IDES test for independent contractor status which is called Section 212(A), (B), and (C).

Remember that if the Company fails any one part of the three part test, then the independent contractor at issue will be found to be an employee for IDES purposes.

The Company is asked to select one representative independent contractor at issue-this is the “Worker” for purposes of the Worker Relationship Questionnaire. If there are 20 drywall installers, for example, the Company would fill out the Worker Relationship Questionnaire for one typical, representative drywall installer (i.e., Worker).

EXAMPLE OF A TRICKY QUESTION: One of the tricky questions on the Worker Relationship Questionnaire that gives particular trouble to my clients is the following question which is on page 2 under “Extent of Independent Status“:

Does the worker represent himself to the public as being in business to perform the same or similar services?

Then you have to check the box “yes” or “no.” If you say yes, you have to explain how the Worker represents himself to the public. “Yes” indicates independent contractor status.

What that question is really asking is if the Worker (for example, drywall installer) represents himself to the public (meaning advertising himself and his business) as being in business to perform the same or similar services (meaning his drywall installation services).

This is an extremely important question because it is asking if the independent contractor at issue really is self-employed and in business for himself. If he is really in business for himself, then he promotes his own drywall installer business. Examples would be having his business name on his truck, on t-shirts, and on promotional fliers that he hands out. He may advertise online or in the newspaper. He may send emails to local builders telling them about his services.

Many people innocently answer the question No-that the Worker does not represent himself to the public as being in business to perform the same or similar services. The reason they answer no is because they think the question is asking if the Worker does the same thing as the Company that is being audited.

This confusing question is just one of many confusing questions on the Worker Relationship Questionnaire. Have an attorney well versed in this area of the law assist you in filling out the Worker Relationship Questionnaire.

For assistance with an IDES audit, IDES Worker Relationship Questionnaire, and/or IDES Hearing or evaluating your use of Independent Contractors, contact Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: (630) 377-1554 or email her at najoerg@wesselssherman.com.

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Categories
Discrimination

Seventh Circuit Court of Appeals Clears Employer From Race Bias Suit

Seventh Circuit Court of Appeals Clears Employer From Race Bias Suit

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Friday, October 6, 2017.

This discrimination case is a heartening legal victory for the employer.

A Seventh Circuit Court of Appeals panel agreed with defendant employer Freedom Mortgage Co. in a racial discrimination suit filed by an African-American former employee. The Seventh Circuit upheld a lower court’s ruling that the former employee didn’t have proof that the employer fired him because he was African-American.

The former employee, Joseph Reed, said the Company disciplined him more harshly than White co-workers for tardiness.

Reed had a history of attendance problems. Reed was fired as part of a staffing reduction (along with a White employee and another African-American employee).

FORMER EMPLOYEE COULD NOT PROVE THAT SIMILARLY SITUATED EMPLOYEES WERE TREATED MORE FAVORABLY: The Seventh Circuit Court of Appeals noted that Reed had failed to gather evidence showing there were any non-African-American employees with attendance policy violations closely resembling Reed’s. The Seventh Circuit Court of Appeals wrote that Reed didn’t demonstrate that the Freedom Mortgage treated similarly situated employees more favorably.

Reed failed to identify any similarly situated employees outside of his protected class who were treated more favorably than him by Freedom Mortgage under similar circumstances. The White employees identified by Reed were not valid comparators because they had more seniority than Reed and had no disciplinary history like Reed’s. Therefore, Reed could not establish disparate treatment and his claim failed as a matter of law.

MUST HAVE PROVEN FACTUAL CONTENT: In this case, it wasn’t clear that the co-workers Reed said he observed arriving late were expected to punch in at the same time he was. Reed’s legal position lacked factual context.

Reed sued under the Illinois Human Rights Act. The Seventh Circuit affirmed summary judgement in favor of Freedom Mortgage. Reed simply had no evidence that he was treated less favorably than similarly situated non-African Americans. Reed failed to show that the denials of his request to work from home were adverse employment actions. Reed could not prove hostile work environment.

This Seventh Circuit Court of Appeals decision may give heart to employers. Simply claiming an employer does something discriminatory does not automatically mean that the Judge will agree with the disgruntled ex-employee. Actual and convincing factual proof of discrimination by the employer is what courts look for.

For assistance with difficult and high risk terminations, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: (630) 377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: “OK, Boomer!”, Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

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Categories
Americans with Disabilities Act (ADA) Family and Medical Leave Act (FMLA)

Extended Medical Leaves and the ADA: Court Provides Much-Needed, Long-Awaited Clarity

Extended Medical Leaves and the ADA: Court Provides Much-Needed, Long-Awaited Clarity

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Thursday, October 12, 2017.

“The ADA is an antidiscrimination statute, not a medical-leave entitlement.” These are the words employers have been waiting more than 25 years to hear, since the date the ADA first became effective, and even more so after the passage of the Family Medical Leave Act in 1993. They address an issue that has vexed employers since day one; that is, whether the duty to accommodate requires an employer to provide an extended medical leave after an employee has exhausted all of the medical leave available to him under the FMLA. The EEOC has vigorously contended that it does, particularly where the proposed leave is of a definite, time limited duration; requested in advance; and, likely to enable the employee to perform the essential functions of his job upon his return. On September 20, 2017, the Seventh Circuit Court of Appeals flatly rejected the EEOC’s contention.

In Severson v. Heartland Woodcraft, Case No. 15-3754 (7th Cir. 2017), the court addressed an issue that is now commonplace for employers: An employee had a serious back problem. He took 12 weeks of FMLA, then, upon the exhaustion of his FMLA, notified his employer that he was having surgery and requested a two-month extension. The employer denied his request, terminated his employment and invited him to reapply once he was released to return to work. However, when the employee was released three months later, he did not reapply. Instead, he sued, claiming the employer had failed to accommodate his disability by refusing to grant him an extended medical leave.

In a decision striking for its clarity and common sense, Circuit Judge Dianne Sykes held that an employee who needs long-term medical leave cannot work and is thus not a “qualified individual” under the ADA. In doing so, she specifically found: “A multimonth leave of absence is beyond the scope of reasonable accommodation under the ADA,” and further noted, “an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.” Thus, while brief periods of leave to deal with medical conditions could be a reasonable accommodation in some circumstances (e.g, when dealing with flare-ups of intermittent conditions that require a couple of days or weeks’ absence), medical leaves that span multiple months are not, since “long-term medical leave is the domain of the FMLA,” not the ADA.

The Severson decision is a much-needed beacon of light on an issue that has been shrouded in grey. Employers can now determine, with reasonable certainty, that requests for medical leave extending months beyond the exhaustion of all FMLA rights are not reasonable as a matter of law, and an employee requesting such an extension is not a “qualified individual with a disability” protected by the ADA.

Of course, the only remaining question is whether the same holds true under a state fair employment law, such as the Wisconsin Fair Employment Act, where the Wisconsin Supreme Court has already held that it is not bound by interpretations of the ADA when dealing with the duty to accommodate under Wisconsin law. Stay tuned.

If you would like more information, or have questions about the Severson decision or the interaction between the ADA and FMLA, contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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Categories
Other

Illinois Responsible Job Creation Act

Illinois Responsible Job Creation Act

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Other on Friday, October 20, 2017.

Effective as of June 1, 2018, the Illinois Responsible Job Creation Act, which amends the Day and Temporary Labor Services Act (820 ILCS 175/1 et seq.), is intended to strengthen and stiffen the Temporary Staffing Industry Regulation. It is alleged that there are over five hundred thousand (500,000) Temporary Workers in the State of Illinois and that more stringent regulations, both of Day and Temporary Labor Service Agencies and Third Party Users, is necessary. Whether this is true or not may be subject to debate, but our brilliant and esteemed legislators believe that it is a necessary course of action.

Some of the key provisions and/or modifications of the original Day and Temporary Labor Services Act are as follows:

  • 820 ILCS 175/5 – a new definition with regard to defining who is a Day or Temporary Labor Applicant/Laborer – “Day or Temporary Laborer” means an individual who contracts for employment with a Day and Temporary Labor Service Agency; “Day or Temporary Labor Applicant” means an individual who requests a job assignment through a Day and Temporary Labor Service Agency, whether in person, verbally or in writing, or through an online application process.
  • 820 ILCS 175/10Employment Notice – when agreeing to send one (1) or more persons to work as a Day or Temporary Laborer the following is required of the Day or Temporary Labor Service: The Agency must notify the Day or Temporary Laborer in writing at the time of dispatch of his/her schedule and length of the assignment. The notice must include the name of the Laborer; the name and nature of the work to be performed, and the types of equipment, protective clothing and training that are required for the task. The notice must also include the wages that are offered; the name and address of the destination of the work; the means of transportation, and whether a meal or equipment of both are provided either by the Day and Temporary Labor Service Agency or the Third Party Client and the cost of the meal and equipment, if any. For multi-day assignments, the Day and Temporary Labor Service Agency must give notice of the actual schedule of work and the length of the assignment. In the event that there is a change in the scheduled shift or location of the multi-day assignment, it is the responsibility of the Day and Temporary Labor Service Agency to provide written notice of such change no less than forty-eight (48) hours in advance. It is the responsibility and obligation of the Day and Temporary Labor Service Agency to establish that if it is not possible to provide the notice regarding any job change in less than forty-eight (48) hours.
  • 820 ILCS 175/20Transportation – Day and Temporary Labor Service Agencies may not charge a fee to transport a Laborer to or from his/her designated worksite and if the Day and Temporary Labor Service Agency provides transportation to the jobsite, the Agency must also provide transportation back at the end of the day unless the designated Laborer advises that he/she has made other arrangements.
  • 820 ILCS 175/30Wage Payment and Notice -Day and Temporary Labor Service Agencies must provide the Laborer with a detailed, itemized statement of wages which must include the name, address and telephone number of each Third Party Client for which the Laborer worked; the number of hours he/she worked and the rate of pay; any and all deductions made from the Laborer’s compensation, either by the Third Party Client or by the Day and Temporary Labor Service Agency and the purpose of those deductions including the Laborer’s transportation, food, equipment, withheld income tax, withheld social security payment and every other deduction. The total amount deducted from meals, equipment and transportation may not cause the Day or Temporary Laborer’s hourly wage to fall below the established State or Federal Minimum Wage and the current maximum amount of the placement fee which the Day and Temporary Labor Service Agency may charge to the Third Party Client.

In addition to the above specifically identified statutory provisions, the new amendments prohibit the Day and Temporary Labor Service Agency from charging any Laborer for the cashing of a check issued by that Day and Temporary Labor Service Agency for wages earned by the individual and prohibits the Day and Temporary Labor Service Agency or Third Party Client from charging a Day Laborer for the expense of conducting a consumer report, a criminal background check or a drug test. The Act also makes the Day and Temporary Service Agency responsible for the Laborer’s wages if the Laborer is not used by the Third Party Client and does not work the shift. The Agency is responsible for paying the Laborer a minimum of four (4) hours pay at the agreed upon rate if the individual is not used. The Agency can reduce that payment of four (4) hours to two (2) hours if the Laborer is contracted to work at a different Third Party Client on the same shift.

There are some very stringent fines, both for the Day and Temporary Labor Service Agency and/or to the Third Party Client, for violations of the Act. These fines and/or penalties may range from $500 to $2,500 for failure to provide work verification forms or payments related to the Laborer’s assignment to a Third Party Client.

Needless to say, the amendments, which are again effective as of June 1, 2018, will cause both the Day and Temporary Labor Service Agency and any Third Party Client to make certain well before that date that they are cognizant of the new rules and regulations and are able to comply with them.

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.

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Categories
Other

The Holidays Are A’Comin

The Holidays Are A’Comin

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Other on Wednesday, October 11, 2017.

Over the past few years, the author has written a “Holiday Article” to provide some guidance/legal insight into the somewhat complicated “Business Holiday Party”. I have received numerous suggestions and/or recommendations (and some good natured kidding), but I am not detoured! It is never too early to begin planning for the Holiday Season of Calendar 2017!

There is no doubt whatsoever that the festive season of November and December calls out every year for a business celebration and it is incumbent upon all Employers to be well prepared both for the party and the potential problems that it can create. Do not forget that we are a highly litigious society and individuals are always looking to “stick it to somebody” to enhance their financial standing. It is not too far-fetched to believe that Employers may be liable for injuries caused to innocent third parties under the doctrine of Respondeat Superior and, therefore, any Employer-related activity must be planned and controlled.

Here are a few suggestions:

  1. Required Attendance/”Be Happy” – While sharing of Holiday Cheer is always better when “all are present”, do not require attendance at any Holiday Function. This may cause an Employee and/or Employees to be negative about the event and that can breed trouble. Also, required attendance may cause someone to raise the question “Are we paid for this event?”, and that will certainly “cast a damper” on the festivities. The author is also aware that there are organizations that not only require attendance, but want everyone to be happy. Happiness and enjoyment cannot be decreed and/or required – these arise only from the relationships of people and cannot be force fed.
  2. Alcohol Consumption – It has been clearly established that alcohol consumption goes hand-in-hand with any party and if you were to eliminate alcohol consumption completely, you would dampen the morale and spirit of some of the Employees attending. This does not mean that you have to have an open bar for the entire event. You can (and should) limit the consumption of alcohol by eliminating hard spirits entirely and having wine and beer as your alcohol. You can further limit the consumption of alcohol (i.e. allow hard spirits, wine and beer) through the issuance of drink tickets with a large number of non-alcoholic beverage tickets to be redeemed for every drink. Please remember that Employees can exchange drink tickets with each other. You must also make absolutely certain that there is sufficient food available and passed around to help control alcohol consumption and absorption. Some Employers consider “the use of incentives” to individuals to act as designated drivers and, on some instances, have also provided for cab fare for individuals who have over imbibed. As a final suggestion, put an exact time schedule on the event (12:00 p.m. – 3:00 p.m. or 4:00 p.m. – 7:00 p.m.) to limit the drinking time.
  3. Compensation and Bonuses – Based on the Court decisions and the National Labor Relations Board, you cannot prohibit Employees from discussing wage related issues. Therefore, consider providing year end salary adjustments and bonuses after the conclusion of the holiday party. No one needs a scene or confrontation related to Employee disagreements about who got the bigger wage increase or bonus.
  4. Selfies – In our current society, and with the heavy prevalence of cellphone cameras, make sure that your Employees are aware that there may be privacy issues involving other Employees and that the snapping of a picture or video of themselves and/or others may be inappropriate. “Before you focus and snap the picture – get permission”. Also, on the party invitation, suggest to the Employees that this is a festive but private event and social postings about what occurs at the event, may not be appropriate.
  5. Time and Location of the Party – This is an issue that bedevils Employers on a yearly basis. Should the party take place at the business location or should it be offsite? The author suggests that strong consideration be given to having the party at a public offsite facility rather than the business location. The public location will have professional Employees who provide food service and drinks and also will provide a potential barrier to liability with regard to third parties. If it is your confirmed belief that the party should be at the workplace location, it is still strongly recommended that the party be during the week and during normal business hours so that office protocols and policies will still apply. There is no doubt in the mind of the author that a party during the week and on normal business hours will drastically cut back on potential bad behavior and unfortunate incidents.
  6. Spouses and Significant Others – There is no doubt that the presence of a spouse or significant other may ameliorate certain behaviors. In fact, it may be an adjunct to boosting the morale of Employees and rewarding them for a job well done if the spouse or significant other is there to celebrate with them. This may help keep the party atmosphere professional.

Whether the Holiday Party is held at your business location or at a public facility, please make sure that you remind Employees of any workplace policies or procedures that will apply and that the Company will not tolerate inappropriate behavior and violations of its policies. It is also strongly recommended that appropriate notice be put in place to suggest that social media postings would not be appropriate for this festive event.

In closing, please enjoy the 2017 holiday season. It is truly a festive time and with appropriate planning and control, the festivities will be much happier!

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by e-mail at waliszka@wesselssherman.com.

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