Heyl Royster

 


Heyl Royster

 

Legislative Updates

5/22/14

Illinois SB 2306 Amends the "Right to Privacy in the Workplace Act"

The new amendment specifically defines the restrictions regarding employer requests for information about an employee's personal social networking profile or website.  2013 Ill. Legis. Serv. P.A. 98-501 (West). The amendment also states that the Right to Privacy in the Workplace Act should not be interpreted as preventing an employer from complying with the rules of self-regulatory organizations. See id.

Assuming the password, account information, or access sought by the employer relates to a professional account connected to a social networking website and not a personal account, nothing in the provisions otherwise prohibits an employer from requesting or requiring an employee or prospective employee to provide any password or other account-related information in order to gain access to that account or profile on a social networking website. Also, these provisions should not prohibit or restrict an employer from complying with a duty to screen employees or applicants prior to hiring or to monitor or retain employee communications as required under Illinois insurance laws, federal law, or by a self-regulatory organization as defined in the Securities Exchange Act of 1934. See 820 ILCS 55/10 (West 2013).

Overtime Required for Prevailing Wage Cash Fringe Benefits Impacting All Non-Union Contractors & Employees

A recent amendment to the Illinois Prevailing Wage Act ("IPWA") requires fringe benefits to now be annualized for purpose of taking a credit for fringe benefit payments. See 820 ILCS § 130 (West 2013).The Illinois Department of Labor ("IDOL") is responsible for administering that Act. The department recently updated its Frequently Asked Questions ("FAQs") to explain how the IDOL intends to interpret the new requirement. In the process of updating its guidance, the IDOL expanded on how fringe benefits might affect the prevailing base hourly rate that a contractor must pay.

The IDOL tells us that any prevailing wage fringe benefits paid in cash must be added to the base hourly rate. Fringe benefits or the equivalent are a part of the total prevailing wage just like the basic hourly wage rate. The Act requires all contractors, regardless of the status of their relationship with a union, pay the components of the prevailing wage, base pay and fringe benefits. Therefore, the IDOL recognizes that the payment of base wages is a requirement separate and distinct from the requirement to pay fringe benefits.

Although both components of the prevailing wage had to be paid to be in compliance with the IPWA, there was no requirement to add the hourly cash equivalent of fringes to the hourly base wage rate. This was consistent with federal prevailing wage law where the regulations make it clear that cash fringe benefit payments are not subject to overtime premiums. 29 C.F.R. § 5.32 (West 2013).

IDOL's revised guidance now states that any prevailing wage fringe benefits paid as an hourly cash equivalent must be added to the base hourly wage rate. The obvious impact is that the hourly cash equivalent for fringe benefits would be subject to overtime premium calculations. As a result, those employers paying cash fringe benefits will pay more to employees working overtime, in excess of 40 hours, in any work week, employees working in excess of 8 hours a day on an IPWA job Monday through Friday, and employees for any and all time worked on Saturdays, Sundays or legal holidays.

This is a fundamentally critical change in the interpretation and administration of prevailing wage law in Illinois. Contractors need to immediately review their accounting practices for Illinois prevailing wage purposes. See 2013 Ill. Legis. Serv. P.A. 98-482 (West).

Workplace Violence Protection Act Expands Remedies

Employers with five or more employees will be permitted to take proactive steps to protect employees from workplace violence, harassment, and stalking. They will be able to apply for an order of protection against disgruntled workers who have made a documented threat against the business or another employee. Employers are required to provide an affidavit that there is a credible threat of violence against the workplace or an employee to apply for an order of protection.

Illinois enacted the Workplace Violence Protection Act (House Bill 2590) to help employers protect their workforce, customers, guests and property by limiting access to workplaces by potentially violent individuals. 820 ILCS 275/15 (West 2013). Under the act, which took effect on Jan. 1, 2014, employers may seek a protective order to prohibit further violence or threats of violence in the workplace. The law applies to both public and private employers—including partnerships, corporations, state agencies, or political subdivisions—that have at least five employees.

Under the law, an employer may seek an order of protection from the local court to prohibit further violence or threats of violence by an individual if: 1) the employee has suffered unlawful violence or received a credible threat of violence from the individual and 2) the unlawful violence has been carried out at the employee's place of work or the credible threat of violence can reasonably be construed to be carried out at the employee's place of work. In addition, an employer may obtain an order of protection under the Illinois Domestic Violence Act by filing an affidavit that shows, to the satisfaction of the court, reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence by the defendant. This affidavit must also demonstrate that great or irreparable harm has been suffered, will be suffered, or is likely to be suffered by the employee.

The law defines a credible threat of violence as a statement or course of conduct that does not serve a legitimate purpose and causes a reasonable person to fear for the person's safety or for the safety of the person's immediate family. It defines an unlawful act of violence as any act of violence, harassment, or stalking as defined by state law. Employer remedies under the act are limited to an order of protection.

Illinois passes "Homeless Bill of Rights"

Illinois joins a number of other states by enacting legislation that provides employment protection for the homeless. See 775 ILCS 45/10(West 2013).The Illinois law aims to "lessen the adverse effects and conditions caused by the lack of residence or a home." 2013 Ill. Legis. Serv. P.A. 98-516 (West).

The new Act provides as follows: "[n]o person's rights, privileges, or access to public services may be denied or abridged solely because he or she is homeless." 775 ILCS 45/10 (West 2013). The Illinois Homeless Bill of Rights seeks to protect people who experience the loss of housing from discrimination by creating a list of basic rights. These rights include the right to maintain gainful employment, the right to access emergency medical care, the right to access public spaces and transit systems, the right to vote on the same basis as other people, and the right to privacy of personal property, records, and information.

Under this Act, the foregoing rights cannot be denied solely on the basis of one's housing status. If any of these rights are violated solely due to one's homelessness, that individual would have the right to take legal action and seek damages.

Multiple State Acts Amended to Protect the Long-Term Unemployed

The passing of House Bill 0011 amended the Public Utilities Act, the Pharmacy Practice Act, the Public Aid Code, the Illinois Marriage and Dissolution of Marriage Act, the Non-Support Punishment Act, and the Income Withholding for Support Act. 2013 Ill. Legis. Serv. P.A. 98-0624 (West). Regardless of any other provision of these laws, if a person is either an unemployed individual who is eligible for unemployment benefits under the Unemployment Insurance Act or an unemployed individual who is no longer eligible for extended benefits because the he exhausted his extended benefits under that Act, then (i) a public utility company that receives any federal or State funds can not terminate or cut off the gas or electrical services, (ii) a pharmacy or pharmacist who receives any federal or State funds can not refuse to dispense prescription medication, and (iii) the unemployed individual can not be sentenced to any period of imprisonment for failure to make child support payments. Id.

This new bill also amends the Code of Civil Procedure. Here, it provides that regardless of any other provision, no person may bring a forcible entry or detainer action for the possession of lands or leased premises against any person who is an unemployed individual who is eligible for unemployment benefits or who is no longer eligible for extended unemployment benefits. Notwithstanding any other provision, no mortgagee who receives any federal or State funds may institute foreclosure proceedings against any mortgagor who is an unemployed individual who is eligible for unemployment benefits or who is no longer eligible for extended unemployment benefits. See id.