If in your job search you find yourself wondering just how far an employer can go, you should check out The FindLaw Guide to Hiring. It’s free and it’s a great resource to help you understand your rights during the application process. Below, we’ve included brief descriptions of just a few of the hiring topics covered in the guide.
]]> Job AdvertisementsEmployers who specify a preferred race, gender, or other characteristic in their job postings may be illegally discriminating before even meeting prospective hires. Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees on the basis of race, color, national origin, religion, or gender in all areas of employment.
Interview Questions
While employers generally have broad discretion when it comes to interview questions, it’s illegal for them to ask certain kinds of questions. For instance, employers may not base their hiring decisions on protected characteristics. Therefore, they can’t ask questions about an applicant’s marital status, drug and alcohol use, or national origin.
Background Checks
Most employers conduct background checks on prospective employees. Generally, the areas looked into must be relevant to the job’s duties and responsibilities. The guide describes the circumstances in which employers can request criminal records, medical records, transcripts, and even your credit history.
If you still have questions about employment discrimination or job applicants’ rights after reading The FindLaw Guide to Hiring, drop by FindLaw’s Answers.
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Shatina Golden, an employee at Northwestern Memorial Hospital, has been arrested for allegedly using patients’ personal information to pay her own bills, the Chicago Tribune reports. Golden has been charged with aggravated identity theft and identity theft.
]]> Golden first came under investigation when Matteson officials noticed “suspicious credit card activity” used to pay her water bill. Police identified the owners of the credit cards and discovered that all the cards had been used at the hospital laboratory.Matteson police found over 50 patients’ credit card numbers, birth dates, and Social Security numbers at Golden’s home. According to hospital officials, Golden had been working at Northwestern Memorial for four years, giving her ample time to collect a cache of patient identities.
Since September 2009, unauthorized access to patient records has exposed the personal information of over 250,000 people in Illinois. According to a government database, several hospitals, a medical lab, a hospice, and the Cook County Health and Hospital System have all reported breaches of patient records.
Under Illinois’ criminal code, a person commits identity theft when he knowingly uses any personal identifying information or document of another person to fraudulently obtain credit, money, goods, services, or other property. A person commits aggravated identity theft by committing identity theft against a person of at least 60 years of age or a person with a disability. While authorities haven’t addressed the issue, it’s likely that some of Golden’s victims were elderly or disabled.
Under the doctrine of respondeat superior, an employer can be held liable for the wrongdoings of an employee if they were committed within the scope of employment. In certain circumstances, an employer can be held liable for even the intentional wrongs of an employee if they were committed, at least, in part on the employer’s behalf.
Golden’s alleged acts of identity theft were carried out during working hours, but they weren’t committed on the hospital’s behalf. Therefore, Northwestern Memorial probably wouldn’t be held liable under respondeat superior.
Shatina Golden is facing up to seven years in prison for her identity theft charges. Her preliminary hearing is scheduled for June 4.
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According to the suit, the owner of the Charley Horse Restaurant terminated Heidi Spontak after infering from Spontak’s appearance that she was pregnant. Spontak later filed a claim with the Equal Employment Opportunity Commission.
]]> In May 2011, Spontak reportedly told her manager and fellow employees that she was pregnant. However, they advised her not to tell the owners about her pregnancy or they would fire her, according to the suit.Spontak claims that one of the bar’s owners, Maria Sord, commented that Spontak looked pregnant, while Spontak was bartending in late July. Soon after, the bar’s manager told Spontak, “They know about your pregnancy,” and terminated her employment. Spontak claims that the termination was in no way due to her performance, and that she was discriminated against because of her pregnancy.
There are numerous federal laws protecting pregnant women from discrimination. The Pregnancy Discrimination Act of 1978 prohibits employers from discriminating based on pregnancy in all aspects of employment including, hiring, firing, and promotions. However, the Act only applies to employers with 15 or more employees. If the Charley Horse Restaurant has at least 15 employees and Spontak’s allegations are accurate, she likely has a viable federal claim for violations of the act.
Heidi Spontak is seeking damages for back pay, attorney’s fees, lost benefits, compensation for emotional distress, and punitive damages of $200,000 for her termination from the Charley Horse Restaurant.
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Below, we’ve included five of the most important federal laws protecting employees from workplace discrimination.
]]> Equal Pay ActThe Equal Pay Act of 1963 requires that male and female employees receive the same wages for the same work. However, the Act doesn’t address inequality in pay regarding other characteristics like race or age.
Americans with Disabilities Act (ADA)
The Americans with Disabilities Act protects individuals who have long-term mental or physical impairments. The Act requires employers to provide disabled employees with “reasonable accommodations” and prohibits them from making employment decisions based on generalizations about people’s disabilities.
Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act protects individuals who are over the age of 40 from age discrimination in hiring, promotions, and firing decisions. However, the Act only applies to employers who have at least 20 employees.
Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act prohibits employers from penalizing employees who take medical or family leave. Employers must grant their employees 12 weeks of unpaid leave each year for the birth or adoption of a child, or the treatment of a serious health condition. Once the employee returns to work, the employer must reinstate the employee in his old job or an equivalent job if the old job is taken.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of race, color, national origin, religion, or gender in all areas of employment. Employers must make decisions based on “business necessity” rather than based on an individual’s membership in a protected class.
Remember that most states also have laws protecting employees against discrimination. If you have any questions about employment discrimination laws or employment law in general, you may want to consult with an attorney.
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The former employees claim that they were wrongfully terminated after taking 12 weeks leave. They're alleging that the hospital violated the Americans with Disabilities Act by firing them.
]]> Under the Family and Medical Leave Act, certain employers are required to give their employees 12 weeks of unpaid leave. The former employees claim that the hospital discriminated against them based on their disabilities by letting them go after they used their 12-weeks leave for treatment, rest, or convalescence.Two of the former workers also allege age discrimination, and three allege racial discrimination as well.
Representatives of the medical center have denied the allegations. "The statement that the medical center terminates employees after 12 weeks leave is untrue," a spokeswoman for the center said. "Medical center policy provides all such employees more than 12 weeks of leave" and "goes above and beyond what's legally required by providing employees a portion of pay during medical leave."
The EEOC is currently investigating the center's medical leave and termination policies to determine whether the hospital has violated the Americans with Disabilities Act. The Act prohibits employment discrimination and many other types of discrimination against mentally or physical disabled people.
The current claims against the University of Chicago Medical Center are just a few of the many discrimination complaints the Equal Employment Opportunity Commission is currently investigating. In Illinois, discrimination complaints rose by about 15 percent from 2009 to 2010.
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In March, the Illinois House of Representatives passed the pension reform bill by a unanimous vote. The bill’s chances were quashed, however, when a panel of the Illinois Senate voted it down this week, the Chicago Tribune reports.
]]> The bill would require local governments to pay for pension increases that result from their employment of former lawmakers. Rather than the state itself, the cities, villages, or other governments that employ retired lawmakers for brief periods of time would be required to pay their pension expenses.“[The vote] says unfortunately part of the General Assembly doesn’t get it. … It’s almost a lack of recognition that there’s a problem and abuses are taking place,” House Republican leader and sponsor of the bill Tom Cross said recently.
Some senators who voted against the bill argue that the bill was the result of panic over a few incidents. The impetus of the bill was “people overreacting to, in most cases, very isolated incidents,” Sen. Donne Trotter stated.
Last year, the media exposed several high profile cases of former state lawmakers receiving large payments for very brief stints of work through some legal maneuvering. In one case, former Rep. Robert Molaro nearly doubled his $64,000 legislative pension by working one month as an aide to Chicago Ald. Edward Burke. Molaro was reportedly paid $12,000 for the advising job. He then annualized the payment over 12 months, and based his pension on a $144,000 salary.
Pension changes will soon head to the state’s voters. In November, Illinois residents will vote on a pension reform proposal that recently passed both the state Senate and the House.
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When Daley retired last year, his public pension benefits were $183,778 a year, around $50,000 more than he would have otherwise received.
]]> Daley formerly served as a state senator. While serving as mayor in 1991, Daley briefly rejoined the legislative pension plan. He stayed on the plan for one month before switching back to Chicago’s municipal pension fund. The switches allowed him to receive benefits worth 85 percent of his salary as mayor.Even if Daley never served another term as mayor, he could have started collecting a public pension of $97,750 a year when he turned 55. If he hadn’t made the series of pension switches, he would only be receiving $20,686 at that point. After five more terms as mayor, Daley now receives $183,778 a year in pension benefits.
Daley not only used the state’s pension system to boost his own benefits, but also as a political tool, according to the Chicago Tribune. In 1991, Daley helped aldermen achieve a significant pension increase, granting them benefits far greater than those of most city workers.
In order to fund his school reform package, Daley’s administration pushed for legislation allowing it to divert $1.5 billion from the Chicago Teachers’ Pension Fund. At the same time, Daley supported benefits increases for city workers without securing adequate sources of funding. The mayor’s actions combined with the recent economic downturn have led to the nearly $20 billion pension deficit the city is now experiencing, according to the Tribune.
The city is still reeling from the pension deficit caused in part by former mayor Richard M. Daley. Last week, Mayor Rahm Emanuel implored state lawmakers to move forward on pension reform measures.
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Robert C. Drefs claimed that he embezzled the money from Messiah Lutheran Church in Elmhurst because he heard voices that ordered him to do so. He pleaded guilty to theft charges in March.
]]> Although Drefs claimed he was only following otherworldly orders, prosecutors noted that the man was lucid enough to cover up his tracks. “Despite hearing the voices, the defendant’s actions were purposeful, they were planned,” DuPage County Judge Kathryn Creswell said.According to prosecutors, Drefs wrote out church checks to a checking account for a business that had once employed Drefs but had since gone out of business. Drefs reportedly still had access to the company’s bank account.
Drefs allegedly has a history of stealing from employers. At the trial, a representative from a boating safety organization testified that Drefs had embezzled over $15,000 from the organization while working as the group’s treasurer.
In general, embezzlement is committed by an employee, fiduciary, or agent. It’s defined as the theft of either money or property by someone who has been entrusted with those assets. Under Illinois’ criminal code, theft of property exceeding $10,000 but not exceeding $100,000 is a Class 2 felony.
Robert C. Drefs’ elderly father reimbursed both the boating safety organization and Messiah Lutheran Church for the money Drefs’ allegedly embezzled. Drefs has begun to attend counseling sessions and has stated that he believes they will help him escape “the dark room” he had mentally been stuck in for a decade.
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The lawsuit was filed against SMS; Jin’s boss, Jianqing Zhao; and his boss’ wife, Bixia Xue, and alleges fraud, discrimination, and violations of workplace policies involving etiquette and overtime compensation. In one instance, Jin claims that his boss used the drawing feature to write a big “F—- You” on the man’s computer.
]]> The lawsuit claims that Zhao took remote control of Jin’s computer and wrote the expletive on his screen. Zhao then allegedly told the whole office to take a look at Jin’s computer. Jin claims that he was unable to erase the message because Zhao overrode his control of the computer.Jin also contends that Zhao humiliated him on several occasions by mocking the man’s English. In addition to the humiliation, the lawsuit states that Jin accumulated 500 hours of overtime, for which he received insufficient overtime pay. The long working hours reportedly caused Jin to suffer from headaches and to fall asleep at a meeting.
Eventually, according to the suit, Zhao asked Jin to work part-time. After Jin refused, he was let go. Jin is seeking damages ranging from $37,000 to $75,000.
Federal law requires that employees receive overtime pay for any time worked beyond forty hours in any one work week. The Fair Labor Standards Act sets the overtime pay rate at one and a half times the employee’s regular pay rate. Employees cannot waive the right to overtime pay. If the allegations are true that Jin was not fully paid for his overtime work, he is likely entitled to the balance.
When Jianqing Zhao was asked about Miaoguang Jin’s lawsuit against SMS Assist LLC, Zhao answered with a laundry list of complaints. “I hired him, and first of all he didn’t perform his job, and he took a nap during work all the time,” Zhao said. “And he ate sunflower seeds all the time in the office, and he’d listen to non-work related music all the time.”
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If done improperly, terminating an employee can reflect poorly on your company and lead to a messy legal dispute. Below, we’ve included a few tips that will help you avoid many of the legal complications that can arise when firing an employee.
]]> Firing an “at will employee”Illinois, like many states, follows the traditional rule of at will employment. This means that, under Illinois law, everyone is presumed to be an “at will employee.” “At will” means just that - an at will employee can be let go at the employer’s will. The employer can fire an at will employee without notice at anytime for any reason, as long as the reason is not illegal, like gender or racial discrimination.
Is there an employment contract?
If the employee has an employment contract with you, she can rebut the presumption that she’s an at will employee. Unions often negotiate such contracts with employers. In such cases, you will have to follow the termination requirements laid out in the contract. Contracts can be oral or written. However, oral contracts are often much harder to prove in court than written contracts. Illinois courts sometimes recognize “implied contracts” as well, where employee handbooks or guidelines describe policies and procedures for firing an employee.
Is it a mass layoff?
If you have 75 or more full-time employees your business is subject to additional requirements under the Illinois Worker Adjustment and Retraining Notification Act. If you’re terminating more than a third of your workforce, you must give 30 days’ advance notice. If you’re laying off 250 or more workers, you must give 60 days’ notice.
Hand over the last paycheck
In accordance with the Illinois Wage Payment and Collection Act, employers are required to provide terminated employees with their last paychecks by the next scheduled pay period. The Act also requires that you include payment for unused vacation hours in the last paycheck, if your employee was entitled to paid vacation leave.
Document the termination
You should document your reason for firing the employee. Federal and Illinois law prohibit employment discrimination based on race, religion, sex, ancestry, age, marital status, handicap, and many other factors. If you’re firing the employee for performance or disciplinary reasons, save his performance or disciplinary reports.
Under the Illinois Unemployment Insurance Act, you may be required to provide compensation to the worker for up to 26 weeks, if the worker was laid off for budgetary reasons. However, if the employee was fired for poor performance or misconduct, you probably won’t have to pay unemployment benefits.
By following these guidelines, you’ll be able to avoid many of the pitfalls that accompany employee termination. Good luck.
This post is part of FindLaw’s Legal U series. We are working to help you learn what to do in your city to cope with some of the legal problems, questions, or issues that come up in daily life. Please come back to learn more from future posts in this series.
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Michael Iniquez, Cicero’s chief of rodent control and a high school board member, has been suspended by the town for three days without pay over a racist post that appeared on his Facebook wall, the Chicago Sun-Times reports.
]]> In December, a post reading “IT’S FRIDAY N——‘S” was posted onto Iniquez’s Facebook wall. The text was accompanied by a picture of a half-naked black child dancing. The post remained on Iniquez’s wall until last week, when the Sun-Times reported on the post, causing controversy in the Morton High school district where Iniquez sits as a board member.The Morton High school district serves more than 8,000 students, predominately from Berwyn and Cicero. Berwyn CARES, a local parents group, has called for the town to make an internal investigation of Iniquez, and for the results to be made public. If the allegations against Iniquez prove true, the group wants Iniquez to resign.
Last week, Iniquez took responsibility for the post, but claimed that his teenage son was to blame for posting it on his wall. When asked why it was on his wall for four months, Iniquez stated that he must have missed it.
Although employees generally have a right to privacy, the right may be limited where e-mail and Internet use is concerned. In addition, employees have the right to be free from discrimination and harassment of all types, a right that Iniquez’s post seems to infringe upon.
Michael Iniquez is currently on unpaid suspension for the racist Facebook post. The town of Cicero has also required that Iniquez complete sensitivity training.
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The state pension system is underfunded by more than $80 billion as a result of decades of pension increases approved by state lawmakers and past governors. Quinn believes that if his plan is enacted, it will save the state $65 billion to $85 billion by 2045.
]]> Quinn’s plan would replace the current debt-burdened retirement system. According to Quinn, the 30-year-plan would make the pension system completely funded by 2042.Here are some of the changes that would be implemented under the plan:
Some critics argue that the plan punishes working people for the indiscretions of past policymakers and governors. ”It is a clearly illegal attempt to solve the problem caused by past governors and the legislature solely on the backs of teachers, caregivers and other public workers,” AFL-CIO President Michael Carrigan said.
However, Gov. Pat Quinn is unwavering in his belief in the plan’s efficacy. “I didn’t create the problem,” Quinn said. “But I’m here to solve it. I know that I was put on earth to get this done.” Hopefully the governor’s confidence isn’t misplaced.
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Kennedy, who owned a South Side tax preparation business, has been charged with six counts of filing false claims for tax refunds, 14 counts of mail and wire fraud, and one count of aggravated identity theft.
]]> Kennedy and the other defendants allegedly registered around 80 fictitious employers with unemployment agencies in the three states. According to authorities, they then used the shell companies to collect unemployment insurance benefits.In order to make the shell companies appear legitimate, the group reportedly made unemployment payroll tax payments from the respective shell businesses. Kennedy allegedly used personal information, including social security numbers, from her tax preparation clients to file unemployment benefit claims.
The Illinois Department of Employment Security was defrauded around $6 million as a result of the scheme, authorities stated. However, IDES director Jay Rowell noted that it wasn’t the department that was the true victim of the fraud but “the millions of hard-working Illinoisans and the business owners who employ them.”
Generally, wire fraud crimes encompass any fraudulent scheme to acquire money or property through the use of interstate “wires,” meaning television, Internet, telephones, or radio. Here, Kennedy and the others are accused of applying for and receiving fraudulent benefits through the mail and Internet. Wire fraud is almost always a federal offense because of the interstate nature of telecommunications.
The allegations against Jacqueline Kennedy and the other defendants come at a time when many states are straining to pay unemployment benefits to their out-of-work residents. “The allegations that a few individuals connived to line their pockets at the expense of others down on their luck is outrageous,” Jay Rowell recently said to the press.
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The proposal, sponsored by Illinois House Speaker Michael Madigan, would amend the state constitution, placing further requirements on pension increases for state workers. It will now go to the Senate, where it is expected to be approved.
]]> The legislation would require a three-fifths vote by state lawmakers, school districts, and city councils to approve an increase in government worker pensions. This is a more stringent standard than the mere majority currently required by pension boards and at most levels of government.The proposal comes at a time when the state is reportedly experiencing a pension shortfall of $83 billion, according to the Chicago Tribune. Both Democrats and Republicans of the House have expressed their support of the measure as an initial step in combating the pension deficit.
Republican Rep. Darlene Senger referred to the proposal as a “step in the right direction.” However, Senger noted that the measure alone won’t solve the state’s $83-billion problem. “This does not change anything with regards to the debt,” Senger said.
Earlier in the month, Mayor Rahm Emanuel discussed how the staggering pension underfunding is hurting the city’s economic growth. Emanuel explained how the overhang deters new business from starting up in or relocating to Chicago. Companies don’t want to become invested in a community with an overwhelming tax burden that will likely unfold for decades, Emanuel stated.
Speaker Michael Madigan probably summed up the importance of the new pension proposal best when he said, “it creates an extra hurdle.” If passed, the amendment won’t do much to cut down the state’s gigantic pension deficit, but it will help ensure the deficit doesn’t get any bigger.
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The panel will have 75 days to issue a report recommending terms for a settlement of the labor contract. Under a new Illinois law that regulates teachers, the Teachers Union is prohibited from striking until certain measures fail.
]]> The panel is expected to issue its report in the middle of July. After that, the CPS and Teachers Union will have 15 days to accept or reject the recommended terms. If it's rejected, the panel can publish its recommendation. The union is then free to strike 30 days later.A new law regulating teachers, signed by Gov. Pat Quinn in July 2011, requires that the Teachers Union comply with the steps before it may strike. The law also sets a high bar for Chicago teachers to reach a decision to strike, requiring the approval of 75 percent of all union members, not just those who vote.
CPS has stressed that it's the Teachers Union that has made the next steps necessary. While the Chicago Teachers Union has expressed its reluctance to strike, it has stated that efforts by Mayor Rahm Emanuel and CPS CEO Jean-Claude Brizard to exclude teachers from school improvement measures and to extend the school day without additional compensation as possibly making a strike necessary.
"Public school teachers are not looking forward to a strike next year," CTU President Karen Lewis said. "We look forward to being in our classrooms with our students. However, given the hostile climate created by the current administration, it is imperative that we are all prepared."
While the Chicago Teachers Union may be reluctant to strike, a strike may be on the horizon if the next step in its negotiations with Chicago Public Schools is unfruitful.
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