Categories
OSHA

OSHA Joint Employer Liability!

OSHA Joint Employer Liability!

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in OSHA on Thursday, September 20, 2018.

The Occupational Safety and Health Administration (OSHA) has just reminded Temporary Staffing Agencies and their clients (i.e. the Host Employer) that they are jointly liable and responsible for a Temporary Employee’s safety and health in two (2) new Guidance Documents relating to respiratory protection, noise exposure and hearing conservation.

Nearly two (2) years after its last Bulletin Issuance, Occupational Safety and Health has advised in Temporary Working Initiative Bulletin No. 8 – Respiratory Protection and Initiative Bulletin No. 9 – Noise Exposure and Hearing Conservation that there is a shared responsibility between Host Employers and Temporary Staffing Agencies. Under Bulletin No. 8, OSHA advises both the Host Employer and Staffing Agency that they are “jointly responsible to ensure that Workers wear appropriate respiratory equipment when required.” Both the Host Employer and the Staffing Agency are jointly responsible to establish that the Employee is properly protected in accordance with Standard No. 8 and neither the Host Employer nor the Staffing Agency can require that the Worker provide or pay for their own respiratory protection if it is required.

Under No. 9, the Host Employer and the Temporary Staffing Agency are jointly responsible for assuring that “Workers receive protection from any hazardous noise levels when it is required under any established OSHA standard.” Neither the Host Employer nor the Staffing Agency can require the Temporary Workers to provide or pay for their own hearing protection devices, nor require that Workers purchase such devices as a condition of employment. In addition, Temporary Employees must be paid for any time spent receiving their audiograms and audiograms must be at no cost to the Employee.

It should be understood that, while OSHA’s view that both the Host Employers and the Staffing Agencies are jointly responsible for the Temporary Workers’ safety and health, OSHA also has taken the position that in fulfilling this shared responsibility, there may be coordination between the Host Employer and the Staffing Agency with regard to fulfilling responsibilities under Nos. 8 and 9 above. While a Host Employer may have more specific knowledge about hazards associated with its worksite, the Staffing Agency also has a generalized safety responsibility for its Employees. Therefore, OSHA would allow the Host Employer and Staffing Agency to divide training responsibilities based on their respective knowledge of the hazards associated with the worksite. Host Employers would have the primary responsibility for training and communication regarding site-specific hazards and Staffing Agencies would be responsible for making reasonable inquiries to verify that the Temporary Workers’ safety is established.

It is extremely important for both the Host Employer and the Temporary Staffing Agency to understanding their responsibilities under these new regulations.

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
Independent Contractor

New Law Creates Online Complaint System for Misclassification of Workers as Independent Contractors Rather than Employees

New Law Creates Online Complaint System for Misclassification of Workers as Independent Contractors Rather than Employees

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Independent Contractor on Monday, September 17, 2018.

On September 22, 2017, Illinois Governor Bruce Rauner signed new legislation (effective July 1, 2018) called the Illinois Employee Misclassification Referral System Act.

This law requires the Illinois Department of Labor to create an online misclassification referral system on the DOL website.

As such, the misclassification complaint may be automatically referred to the Illinois Department of Employment Security; and/or the Illinois Workers’ Compensation Commission; and/or the Illinois Department of Revenue; and/or the Illinois Department of Labor, as applicable via one form on the DOL online website. Per the law, anonymous and third-party complaints will not be accepted. The complaints will be made by workers allegedly misclassified as independent contractors rather than employees.

As of this date in writing this article, the Illinois Department of Labor has NOT yet created the complaint system on its website. But, the complaint system is presumably forthcoming as required by the new law.

In preparation to defend against any complaints under this new system, Illinois companies should carefully assess whether their workers are properly classified as independent contractors and know how to strengthen that relationship. Our law firm has been a leading resource for many years on the issues of independent contractor status.

Questions? Contact Attorney Tony Caruso in our St. Charles office at (630) 377-1554 or by email at ancarsuo@wesselssherman.com.

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Categories
Independent Contractor

Exotic Dancers Found By Jury To Be Misclassified Independent Contractors

Exotic Dancers Found By Jury To Be Misclassified Independent Contractors

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Independent Contractor on Monday, September 24, 2018.

Exotic dancers can be properly classified as either employees or independent contractors depending on how the working relationship is structured. But when the independent contractors believe they have been misclassified and should have really been employees, lawsuits may result.

THRESHOLD LEGAL ISSUE: A Florida federal jury (under the U.S. District Court for the Southern District of Florida) has found an adult entertainment club liable (for wages and overtime) to eight exotic dancers for a whopping $1.8 million. Espinoza v. Galardi South Enterprises Inc., No. 14-cv-21244 (S. D. Florida June 27, 2018). The threshold legal issue of this lawsuit was whether the dancers were independent contractors or employees under Federal wage and hour laws (Fair Labor Standards Act).

JURY FOUND DANCERS WERE MISCLASSIFIED; CLUB AND CLUB OWNER FOUND LIABILE: The federal jury found the exotic dancers had been misclassified (by both the club and club owner) as independent contractors. The jury also found that the club and club owner either knew or showed “reckless disregard” for the law (when the club and club owner wrongly classified the dancers as independent contractors). The jury awarded the dancers unpaid wages and overtime. The dollar amount will likely double when the federal court imposes mandatory liquidated damages (because of a finding by the jury of willful violation of the wage and hour law).

As part of the monetary award by the jury, one of the exotic dancers will get an additional $75,000 in lost wages (plus liquidated damages). The jury found the exotic dancer was fired by the club as retaliation because she filed a lawsuit against it and then refused to sign an arbitration agreement afterwards.

CONTROL AND DIRECTION: The exotic dancers alleged in their complaint that they should have been classified as employees (and not independent contractors). The dancers argued that they were controlled by corporate-wide, uniform written rules and guidelines and policies that were established by the club. The dancers alleged that they were penalized by the club for tardiness; were told by the club how much clothing to remove during each song; and were required by the club to show up for unpaid staff meetings.

NEED TO CAREFULLY STRUCTURE AN INDEPENDENT CONTRACTOR RELATIONSHIP: The adult entertainment business has been hit with many independent contractor misclassification verdicts (state and federal) and settlements over the years. Like all other industries that tend to rely on the services of independent contractors, these clubs must carefully structure their independent contractor relationships to avoid undue direction and control (and comply with the relevant “independent contractor legal test”).

KEY QUESTION IN EVALUATING INDEPENDENT CONTRACTOR STATUS: At the heart of most of these kinds of legal challenges is the key question: Is the Independent Contractor actually running his or her own business? And…if the desired answer is “Yes”…how can this be proven?

Questions?: For further information on independent contractor status, various strategy steps to evaluate and strengthen independent contractor status, and assistance drafting independent contractor agreements, please contact Attorney 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
Form I-9

I-9 Audit Notices on the Rise

I-9 Audit Notices on the Rise

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Form I-9 on Wednesday, September 26, 2018.

With all the furor in the media with regard to the “Border Wall” and United States immigration policy, Employers are losing sight of an even more prominent threat. The Homeland Security Investigations Unit (HSI), which is the investigative agency within the United States Immigration and Customs Enforcement Group and responsible for Form I-9 compliance, has ratcheted up Inspection Notices for Employers. In point of fact, since the beginning of the current Government Fiscal Year, the HSI has served well over 2,800 Notices of Inspection and made thirty-two (32) arrests in connection with onsite Form I-9 compliance. It should be noted that in the last Fiscal Year, the same entity initiated 1,360 I-9 Audits and obviously that is showing a tremendous increase. While the Border Wall and overall immigration policy may eventually impact the Federal Budget and tax dollars, a more important concern for Employers is the HSI “knocking on the door right now!”

What actions must an Employer take to protect itself during an I-9 Audit with its potential for civil and criminal penalties:

  • Conduct an I-9 Self-Audit as quickly as possible to assess current compliance and address errors that must be corrected. The current three (3) page Form may look simple at first glance, but the potential for errors creating technical and substantive violations is a potentially serious problem.
  • Develop a game plan for when the government “knocks on the door.” Who is going to meet with them and control the investigation?
  • Investigate and document that those individuals who are tasked with current I-9 compliance and retention have clearly established internal procedures on who verifies and performs I-9 Audits and where and how those documents are retained.

While Employers may believe from a time and cost perspective that Form I-9 compliance can be totally contained in-house, after the Self-Audit, if problems have been ferreted out, it may be in the Employer’s best interest to consult with Labor Counsel to make sure the problems are eradicated or appropriate defenses created.

The investment of time, effort, and resources to assure From I-9 compliance before the government arrives, makes not only good business-sense, but dollars and cents as well!

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

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Categories
Harassment

Sexual Conduct Does Not Always Constitute Sex Discrimination

Sexual Conduct Does Not Always Constitute Sex Discrimination

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Harassment on Wednesday, September 26, 2018.

Wait, what? If the conduct directed at an employee is sexual in nature or has sexual connotations, doesn’t that automatically make it unlawful sexual harassment? Not necessarily.

In Smith v. Rosebud Farm, Inc., Case No. 17-2626 (7th Cir. Aug. 02, 2018), the Seventh Circuit Court of Appeals, which governs Illinois, Wisconsin and Indiana, recently revisited a somewhat esoteric, but important nuance in the law governing sexual harassment: “Title VII is an anti-discrimination statute, not an anti-harassment statute.” That is, unwanted sexual behavior is not necessarily actionable under Title VII simply because the conduct at issue has sexual content or connotations. There must still be evidence that it was directed at an individual because of his/her sex, or that members of one sex were treated differently than the other.

In Rosebud Farm, the plaintiff was regularly subjected to groping, grabbing and other offensive conduct of a sexual nature by the other men in the butcher shop – “sexual horseplay” according to Rosebud. The jury returned a verdict in Smith’s favor, but Rosebud argued that it was entitled to judgment as a matter of law, because, in order to prevail, Smith had to show more than unwanted sexual touching or taunting (which the company acknowledged was severe, pervasive and known to Smith’s supervisor); he had to show that is was directed at him because of his sex.

The court agreed with Rosebud’s legal premise – but found ample evidence in the record to demonstrate that men were treated differently than women at Rosebud. Only the men were groped, taunted and tormented. The female employees were left alone. This, the court held, was sufficient to show that Smith was discriminated because of his sex.

Does this mean that conduct does not constitute sexual harassment as long as both men and women are groped equally? Of course not. First, while this is an interesting nuance in the law governing sexual harassment, it is generally only raised in cases involving same sex harassment. Second, regardless of whether the conduct constitutes an act of sex discrimination in violation of Title VII, it may also constitute sexual assault, which is criminal. Lastly, and most importantly, such conduct is grounds for discipline and should never be permitted in the workplace, regardless of whether it “technically” constitutes an act of sex discrimination. In other words, if it never occurs, you never have this debate.

If you have any questions about sexual harassment, same sex harassment or responding to complaints of harassment in the workplace, feel free to contact Wessles Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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Categories
Employment Policies and Procedures

Workplace Accommodation – Nursing Mothers

Workplace Accommodation – Nursing Mothers

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employment Policies and Procedures on Wednesday, September 19, 2018.

In 2001, specifically July 12, 2001, the State of Illinois put in place legislation dealing with Nursing Mothers in the Workplace (820 ILCS 260/1, et seq.). This legislation required Employers, who had six (6) or more employees, to allow nursing mothers “reasonable unpaid break time each day” to express breast milk for their infant children. The Law also required that to provide this opportunity for nursing mothers, the Employer had to make “reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where the employee could express her milk in privacy.” (820 ILCS 260/15)

Recently, Governor Rauner signed some amendments to the Nursing Mothers in the Workplace Act, which expands the obligations of Employers. Previously, the pre-amendment version of the Act only required that Employers provide “reasonable unpaid break time each day” to a female employee. The 2018 amendments to the Act now require that such breaks be provided on a “reasonable basis for one year after the child’s birth” as needed by the nursing mother, but that such breaks “cannot reduce an employee’s compensation for time used for the purpose of expressing milk or nursing a baby.”

As well, the previous Act established that such breaks “could not unduly disrupt an Employer’s operation.” The revised Act now provides that the exception in the Illinois Human Rights Act of an “undue hardship” must be established by the Employer before it can refuse to provide these breaks. The obligation of establishing an “undue hardship” that is prohibitively expensive or disruptive to an Employer is the burden that the Employer must bear and is an extremely difficult standard to achieve.

Every Employer in the State of Illinois should be cognizant of the new amendments to the Nursing Mothers in the Workplace Act and make sure that they are in compliance with this revised law.

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
Employee Benefits

What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions

What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Benefits on Monday, September 10, 2018.

There is a lot of confusion among employers about what is legally required in Illinois regarding vacation pay for company employees. The following are some commonly asked questions:

1. Does an Illinois employer have a legal obligation to offer its employees paid vacation?


Answer: No, unless there is in place a Company policy or individual employment contract promising the employees paid vacation.

2. Can an Illinois employer have a strict policy that employees must use vacation by a certain stated date or the vacation is lost?

Answer: Yes

3. Is an Illinois employer required to pay the monetary equivalent of all earned but unused vacation to an employee who quits or is fired or retires?

Answer: Yes, the Company must pay a departing employee for all earned but unused vacation.

4. If the employee is entitled to earned but unused vacation pay, is the employee also entitled to unused sick pay or holiday pay?

Answer: In Illinois, an employee is not entitled to severance pay, sick pay or holiday pay upon separation from employment unless the employer has promised to pay in an employment contract, offer letter, employee handbook, or other agreement or document.

For assistance with vacation pay or compensation under the Illinois Wage Payment and Collection Act, 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.

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