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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.

Related Posts: Why a Handbook? The Necessity of Having an Employee Handbook, Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?, Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws , Federal Court Bars Minnesota Department of Labor and Industry From Pursuing Claims for Sick Leave Benefits Against AT&T on Behalf of Union Employees Who Were Not Sick

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Why a Handbook? The Necessity of Having an Employee Handbook

Why a Handbook? The Necessity of Having an Employee Handbook

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Benefits on Tuesday, August 28, 2018.

An employee handbook provides communication between employer and employee. It sets forth the requirements for employees and notifies them what they can expect from your Company as to legal obligations along with employee rights. Also, a written Equal Employment Opportunity statement gives protection to employers.

What should an employer consider in an employee handbook?

Keep it current and remember one size does not fit all states where the Company might do business. In an employee handbook, the employee is the intended audience. It should have a straightforward layout which familiarizes employees with basic policies and benefits.

What are the steps in implementing or revising a handbook?

1. Review your current company policies;

2. Create an outline;

3. Summarize versions of each updated policy and add each summary in the appropriate place according to the outline;

4. Assign a team to review;

5. Submit the final version to legal counsel for review;

6. Select a mean for publication (i.e., hardcopy or online);

7. Distribute handbook to all covered employees;

8. Establish a system for periodic review and updating.

What specific elements and policies should be included in an employee handbook?

I suggest that you attend our upcoming teleseminar to get more information. See our website for complete details.

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

Related Posts: What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions, Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?, Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws , Federal Court Bars Minnesota Department of Labor and Industry From Pursuing Claims for Sick Leave Benefits Against AT&T on Behalf of Union Employees Who Were Not Sick

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Employee Benefits

Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?

Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Benefits on Wednesday, July 26, 2017.

To the concern of many employers, on July 1, 2017 two new ordinances went into effect in the City of Chicago and Cook County. Employers are upset to learn that they are now required to give employees paid sick days. These ordinances can be confusing; below is a synopsis of the requirements of these two new laws to guide your Company.

New Law #1: City of Chicago

City of Chicago, Illinois Paid Sick Leave Ordinance – effective July 1, 2017. Posting and Notice to Employees required. Covers all employers: who maintain a business facility within the geographic boundaries of Chicago and/or subject to one or more of the city’s licensing requirements. Covered Employees are those who work at least 80 hours in any 120 day period. NOTE: Construction employees covered by a collective bargaining agreement are excluded under this law along with some units of governmental entities and motor carriers. Company must have a Paid Sick Leave Policy which complies with the City of Chicago Municipal Ordinance

Accrual of Paid Sick Leave

Employees who work at least 80 hours in any 120-day period may accrue up to 40 hours of paid sick leave over the course of one year at a rate of one hour paid sick leave for every 40 hours worked.

Exempt employees are assumed to work 40 hours a week, but if their normal workweek is less than 40 hours, then they will accrue sick leave based upon their normal workweek.

Accrual of paid sick leave is calculated in one-hour increments; NOT fractional accruals.

Waiting Period Before Use

Company will bank paid sick leave for the first 180 days after the covered employee starts his or her employment; employee MAY use the accrued paid sick leave thereafter.

Carry Over of Accrued Paid Sick Leave

Employees may carry over half of their unused paid sick leave at the end of the year in an amount not to exceed 20 hours with the remaining balance lost.

Cautionary Note to the Employer: If employer is subject to the Family and Medical Leave Act, the following is required: Employee may carry over up to 40 hours of unused paid sick leave for use as FMLA leave. If the employee carries over 40 hours of FMLA leave and uses it, employee MAY NOT USE MORE THAN AN ADDITIONAL 20 hours of sick leave during the course of the year.

Separation of Employment

Employee is not entitled to be paid for any accrued unused paid sick leave upon separation of employment.

Use of Paid Sick Leave

The employee may use paid sick leave for the following:

  1. The illness or injury of the employee;
  2. The medical care, treatment, diagnosis, or preventative medical care of the employee;
  3. The illness or injury of the employee’s family member or to care for a family member receiving medical care, treatment, diagnosis, or preventative medical care;
  4. If the employee or is or her family member is a victim of domestic violent or a sex offense; or
  5. The Company’s place of business is closed due a public health emergency, or employee needs to care for a child whose school or place of care is closed due to a public health emergency.

Notice Prior to Use of Paid Sick Leave

The Company can require seven days’ notice when the need for paid sick leave is reasonably foreseeable.

When not reasonably foreseeable, the Company can require the employee to give notice as soon as practicable.

In the event the employee is absent for three or more consecutive work days, the Company can require documentation to support the employee’s request for paid sick leave.

New Law #2: Cook County

Cook County, Illinois Earned Paid Sick Leave Ordinance – effective July 1, 2017 Covers all employers in the County, except where a municipality has opted out where the business facility of the Company is located with some exceptions. Covered Employees extended to employees who, in any two-week period perform at least two hours of work for an employer while physically present within the geographic boundaries of Cook County, Illinois. NOTE: Construction employees covered by a collective bargaining agreement are excluded under this law. Company must have a Paid Sick Leave Policy which complies with the Cook County Ordinance.

NOTICE PRIOR TO USE OF PAID SICK LEAVE

Accrual of Paid Sick Leave

Employees who in any particular two-week period perform at least two hours of work for the Company while physically present within the geographic boundaries of Cook County, Illinois may accrue up to 40 hours of paid sick leave over the course of one year at a rate of one hour paid sick leave for every 40 hours worked.

Exempt employees are assumed to work 40 hours a week, but if their normal workweek is less than 40 hours, then they will accrue sick leave based upon their normal workweek.

Accrual of paid sick leave is calculated in one-hour increments; NOT fractional accruals.

Waiting Period Before Use

Company will bank paid sick leave for the first 120 days after the covered employee starts his or her employment; employee MAY use the accrued paid sick leave thereafter.

Carry Over of Accrued Paid Sick Leave

Employees may carry over half of their unused paid sick leave at the end of the year in an amount not to exceed 20 hours with the remaining balance lost.

Cautionary Note to the Employer: If employer is subject to the Family and Medical Leave Act, the following is required: Employee may carry over up to 40 hours of unused paid sick leave for use as FMLA leave. If the employee carries over 40 hours of FMLA leave and uses it, employee MAY NOT USE MORE THAN AN ADDITIONAL 20 hours of sick leave during the course of the year.

Separation of Employment

Employee is not entitled to be paid for any accrued unused paid sick leave upon separation of employment.

Use of Paid Sick Leave

The employee may use paid sick leave for the following:

  1. The illness or injury of the employee;
  2. The medical care, treatment, diagnosis, or preventative medical care of the employee;
  3. The illness or injury of the employee’s family member or to care for a family member receiving medical care, treatment, diagnosis, or preventative medical care;
  4. If the employee or is or her family member is a victim of domestic violent or a sex offense; or
  5. The Company’s place of business is closed due a public health emergency, or employee needs to care for a child whose school or place of care is closed due to a public health emergency.

Notice Prior to Use of Paid Sick Leave

The Company can require seven days’ notice when the need for paid sick leave is reasonably foreseeable.

When not reasonably foreseeable, the Company can require the employee to give notice as soon as practicable.

In the event the employee is absent for three or more consecutive work days, the Company can require documentation to support the employee’s request for paid sick leave.

Employers: If you are NOT in compliance, do it NOW: You will need a notice, a posting and a written paid sick leave policy, effective July 1, 2017. Each Employer’s situation is different. Contact an experienced employment attorney to make sure your policies are in compliance.

Questions? Need someone to review your paid sick leave policy? Contact Tony Caruso in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

Related Posts: What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions, Why a Handbook? The Necessity of Having an Employee Handbook, Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws , Federal Court Bars Minnesota Department of Labor and Industry From Pursuing Claims for Sick Leave Benefits Against AT&T on Behalf of Union Employees Who Were Not Sick

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Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws

Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws

On behalf of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Benefits on Sunday, June 25, 2017.

In 2016, both Minneapolis and St. Paul passed city ordinances requiring private employers to provide their employees with paid sick time / safe time. These ordinances, despite opposition in the courts and in the legislature, go into effect on July 1, 2017. Many employers already provide their employees with paid time off; however, it is wrong to assume that more generous leave policys automatically satisfy these ordinances. Unfortunately, the majority of existing leave policies require modifications to fully comply with these new laws. Some of the more common areas that we have been addressing with clients, include:

  • Ensuring that leave can be used for all of the purposes allowed in the ordinances (e.g. domestic abuse).
  • Eliminating existing restrictions common in most employers’ leave policies that may not be applied to these newly mandated leaves (e.g. documentation or other forms of proof).
  • Conflicts between existing “use-it-or-lose-it” policies and new rights to carry over accrued leave from year to year.

The sick time / safe time ordinances will provide about 150,000 workers with paid sick time / safe time leave. Both ordinances provide leave for employees who perform work in the city for at least 80 hours per year. The Minneapolis ordinance covers all employers. Employers who employ six or more employees must provide paid leave. However, Minneapolis provides an exemption for smaller employers; those with fewer than six employees may provide unpaid leave. In St. Paul, employers who employ 24 or more employees must provide paid leave starting July 1, 2017. Starting January 1, 2018, employers with 1-23 employees must also provide paid leave. In determining number of employees, both ordinances require that employers count all employees, including part time employees, temporary employees, and employees performing work outside of the city.

The sick time / safe time ordinances are designed to provide leave to cover situations involving health conditions, safety concerns, and childcare responsibilities. The sick time may be used for the employee’s own health condition, appointments for diagnosis, or preventative care. In addition, the leave may be used for the health condition of a family member. Safe time refers to the use of leave as a result of domestic abuse, sexual assault, or stalking. It may be used in situations involving the employee or a member of the employee’s family. Finally, the new ordinances apply to time of used for childcare in the event of a school closing.

Affected workers will begin accruing time on their first day of employment and are eligible to use the leave after 90 days on the job. According to the ordinances, the leave accrues at the rate of one hour per 30 hours worked. Workers may accrue up to 48 hours per year and may roll over 80 hours per year. Therefore, an employee would be able to use up to 128 hours of paid sick leave per year.

The ordinances permit employees to use the paid leave without providing any notice if the need is not foreseeable. However, if the notice is foreseeable, employers may require notice. In St. Paul, employers may require reasonable advance notice. Minneapolis employers may also request reasonable notice, but may not request more than seven days of advance notice.

While it appears that these new requirements will go into effect in July, future changes are possible given ongoing litigation over the Minneapolis ordinance. The Minnesota Chamber of Commerce filed a lawsuit requesting a Hennepin County Court to halt enforcement of Minneapolis’ ordinance as a whole, arguing that it conflicted with state law and was an example of local government overreach because it was written to apply to any workers doing business in the city. The Court ordered an injunction limiting the reach of the Minneapolis ordinance to cover only employees who work for employers within a Minneapolis location. However, the Court let the remainder of the ordinance stand. The Minnesota Chamber of Commerce appealed this decision to the Minnesota Court of Appeals, arguing that the entire ordinance should be halted. Businesses and city officials in St. Paul have been closely watching this litigation to determine its impact on their own ordinances. It appears the Minnesota appellate courts will have the last word in deciding whether and to what extent the Minneapolis and St. Paul ordinances survive.

What should employers do?

While employers that already provide paid time off that meets the ordinance requirements do not need to provide any additional leave, there are steps that every employer should take to prepare prior to the July 1, 2017 effective date.

•1. Prepare but don’t take action just yet. The final versions of these ordinances are still undecided, as is evident by the pending appellate litigation. Best practice is to wait until the ordinances become effective to announce any program changes.

•2. Count your employees and determine your company’s responsibilities. As stated above, Minneapolis’ ordinance obligations vary depending a business size of 6 employees. In St. Paul, 24 or more employees will determine when an employer must meet its obligations. In addition, new employers should prepare to comply within 6 months of hiring their first employee. The ordinances permit a six-month grace period for new employers until January 1, 2023.

•3. Review current leave and handbook policies. Employers must prepare to make changes to comply with the new ordinances starting July 1, 2017. If an Employee Handbook exists, employers should also include a notice of employee rights and remedies in the handbook.

•4. Ensure compliance with leave entitlements by creating a system to tally and track time. Under the ordinances, employers must provide workers with a current leave balance upon a worker’s request. Business should devise a system that will track this balance with ease.

•5. Prepare to post notice of employee rights at any worksite where any employee works. The cities will release notices in multiple language for employer use. Using the posting published by the department, employers should prepare to display versions of the postings in those languages spoken by at least five percent of the employer’s workforce.

•6. Watch the news. While the pending appeal will certainly impact the outcome of Minneapolis’ ordinances, it is also likely to change how the St. Paul ordinance is ultimately administered. Other cities that have been considering local sick time requirements (Duluth) will also be watching the appeal outcome to determine how to best institute similar rules.

Questions? Please contact James Sherman at (952)-746-1700 or by email jasherman@wesselssherman.com

Related Posts: What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions, Why a Handbook? The Necessity of Having an Employee Handbook, Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?, Federal Court Bars Minnesota Department of Labor and Industry From Pursuing Claims for Sick Leave Benefits Against AT&T on Behalf of Union Employees Who Were Not Sick

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Federal Court Bars Minnesota Department of Labor and Industry From Pursuing Claims for Sick Leave Benefits Against AT&T on Behalf of Union Employees Who Were Not Sick

Federal Court Bars Minnesota Department of Labor and Industry From Pursuing Claims for Sick Leave Benefits Against AT&T on Behalf of Union Employees Who Were Not Sick

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Benefits on Tuesday, February 28, 2017.

Minnesota statutes section 181.9413 permits employees to use “personal sick leave benefits” provided by their employers, for absences due to their child’s illness or injury. In essence, then, state law “rewrites” employer sick leave benefits which, not surprisingly, typically require that the employee must be sick to use the benefit. The statute permits employees to receive paid sick leave when the employee is not sick, but is absent from work to care for a sick or injured child. As a result, Minnesota law allows employees to use sick leave for purposes not intended by their employers when providing such benefits. However, when the Minnesota Department of Labor and Industry (DOLI) attempted to apply this statute to unlimited sick leave benefits provided for in a collective bargaining agreement between AT&T and a union representing some of its employees – the Communication Workers of America (CWA) – a federal judge ruled that Section 181.9413 is preempted by federal labor law. Holding that the Labor Management Relations Act preempted state law in this instance, the court permanently enjoined DOLI from bringing, or even investigating, claims against AT&T under Minnesota’s sick leave statute on behalf of employees covered by the union contract.  

The AT&T ruling may prevent Minnesota DOLI from applying state law to essentially re-write sick leave provisions in a union contract; however, it is of little help to the vast majority of employers who are non-union. Yet labor law is not the only federal law that preempts states from enforcing laws that materially alter employee benefits. The Employee Retirement Income Security Act (ERISA) is another federal law that preempts conflicting state laws. The key for ERISA preemption to apply, lies in whether an employer’s sick leave policy is considered an ERISA governed plan. This requires, among other things, that paid leave is paid from a benefit fund set aside for such leave, rather than out of the employer’s general funds. These and other administrative burdens that accompany an employee benefit plan under ERISA, may outweigh the benefits of preempting state law. However, for larger employers or those whose sick leave benefits may already qualify as an ERISA benefit plan, the State of Minnesota (or any other state) may be preempted from rewriting those sick leave benefits to permit their use by non-union employees who are not sick.

______________________________________________________________________________

For questions about Minnesota’s personal sick leave statute, or how it may be preempted by various federal laws in certain instances where employees who are not sick attempt to receive paid sick leave, contact: James Sherman, at (952) 746-1700, or email him at jasherman@wesselssherman.com

Related Posts: What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions, Why a Handbook? The Necessity of Having an Employee Handbook, Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?, Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws

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Legislative Update: Illinois Adopts Employee Sick Leave Act

Legislative Update: Illinois Adopts Employee Sick Leave Act

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Benefits on Monday, October 17, 2016.

Today, many employees face the dilemma of how to take time off from work to care for an ill family member and still be paid. Before this law, employees had to say they were sick (when they were not) in order to be off work to care for their family and still be paid. Or, the employee would have to rely on a compassionate employer who would allow the employee to use their personal sick days in this situation. Now, it will be mandated by law that paid personal sick days of the employee can be used for the illness of a family member. In August, 2016, Governor Bruce Rauner signed the Employee Sick Leave Act, effective January 1, 2017.

What EMPLOYERS are covered under this law?

All Illinois Employers are covered if they have paid sick leave for employees.

What EMPLOYEES are covered under this law?

All Illinois Employees are covered if they have paid sick leave at work.

What is the EMPLOYEE entitled to?

  • Employees can use paid personal sick leave benefits if already provided by the Company (excluding short-term and long-term disability) for an absence due to an illness, injury or medical appointment of a family member.
  • Limited to reasonable periods of time as the employee’s attendance may be necessary.
  • Same terms as the employee is able to use sick pay for their own illness or injury.
  • Employer can limit amount of use for this purpose to not less than six months that would accrue to employee’s own sick pay at current rate of entitlement.
  • Does not extend the maximum amount of leave under the Family and Medical Leave Act.

How are family members defined under the law?

Employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Note: This law does NOT require Illinois employers to provide paid sick leave to employees; but rather, it DEFINES THE USE if the employee has existing paid sick benefits. Other laws as to municipal and county ordinances along with federal laws may require Illinois employers to provide paid sick leave to employees.

Employers may want to update their paid sick leave policy in their employee handbook to reflect this new law effective January 1, 2017.

Questions? Contact Attorney Anthony Caruso at Wessels Sherman St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com.

Related Posts: What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions, Why a Handbook? The Necessity of Having an Employee Handbook, Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?, Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws

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