Identifying Labor and
Employment Issues
Before They Become a
Problem for the Client
Labor and Employment Law for Real Estate Lawyers
The Surprising World of People
and Their Jobs
The Surprising World of People
and Their Jobs
We Will Cover:
• Wage & Hour Issues
• Discrimination and Harassment Issues
• State Tort Laws
• Federal Labor Law
• Benefit and Leave Laws
• Other Regulatory Schemes
• Other Relevant Laws
• Constitutional Issues
We Will Not Cover:
• Contracts
• Intellectual Property & Trade Secrets
• Non-Compete Agreements, and
• Myriad other kinds of questions that
might come up, but are not typical
Wage & Hour Issues
Wage & Hour Issues
•Fair Labor Standards Act (FLSA)
•Minimum wage standards
•Time and a half for overtime
Wage & Hour Issues
•Three exemptions from the
overtime requirement:
• Administrative
• Executive
• Professional
Wage & Hour Issues
•Questions that may arise:
Wage & Hour Issues
•Donning and
Doffing
Issues
Wage & Hour Issues
•Lunch and
other unpaid
time
Wage & Hour Issues
How Claims Can Add Up
• $26 /hour
• $39 /overtime
hour
• $19.50 per unpaid
½ hour lunch
• $1,950 for 100
employees
Wage & Hour Issues
How Claims Can Add Up
• $9,750 per five-day
week
• $507,000 per year
• $1,014,000 per year,
including liquidated
damages
• $3,042,000 for
three year total
• Plus attorney’s fees
and costs
Wage & Hour Issues
Illinois Minimum Wage Law
• Minimum wage is
higher than federal
• Ill. is stricter
regarding who
qualifies for an
exemption
• Class claims are
different
Wage & Hour Issues
Illinois Employee
Classification Act
• Applies to construction
• Tendency for employers
to classify employees as
independent
contractors:
• No minimum wage
• No overtime
• No Social Security
• Penalties for
misclassification
Wage & Hour Issues
One Day Rest in Seven Act
• Exactly what the name
implies
Wage & Hour Issues
Wage Payment and Collection
Act
• Two main issues:
• Deductions from
wages—usually
you cannot do it
• Accrued vacation—
presumption is
employee is
accruing for next
year
Discrimination and
Harassment Issues
Discrimination and
Harassment Issues
• Federal Law
Discrimination and
Harassment Issues
• Federal Law—Different laws for different
characteristics
• Title VII
• Race
• Color
• Religion
• Sex
• National Origin
Discrimination and
Harassment Issues
• Federal Law—Different laws for different
characteristics
• Age Discrimination in Employment Act of
1967 (ADEA)
• Age
Discrimination and
Harassment Issues
• Federal Law—Different laws for different
characteristics
• Americans with Disabilities Act (ADA)
• Disability
Discrimination and
Harassment Issues
• Federal Law—Different laws for different
characteristics
• The Rehabilitation Act
• Disability, but only with respect to employers
working on federal projects or receiving
federal funds
Discrimination and
Harassment Issues
• Federal Law—Different laws for different
characteristics
• Section 1981
• Race
• Ethnicity if related to “race,” such as Hispanic
• Religion if related to “race,” in a 19th Century
sense, such as “the Hebrews”
Discrimination and
Harassment Issues
• Federal Law—Different laws for different
characteristics
• Equal Pay Act
• Sex, but only as it relates to pay
• No need to prove discriminatory intent
Discrimination and
Harassment Issues
• Federal Law—Different laws for different
characteristics
• Uniformed Services Employment
and Reemployment Rights Act
(USERRA)
• Military Service, but only as it relates
to jobs and benefits after a leave
Discrimination and
Harassment Issues
• State Law—Most Bases Covered by The
Illinois Human Rights Act
• race, color, religion, national origin,
ancestry, age, sex, marital status, order of
protection status, disability, military status,
sexual orientation, or unfavorable discharge
from military service
• Arrests without convictions
Discrimination and
Harassment Issues
• Procedure
• Usually a two-step procedure
• Filing with an administrative agency
• Equal Employment Opportunity Commission
• Illinois Department of Human Rights
• Trial in another forum:
• Federal Court
• State Court
• Illinois Human Rights Commission
Discrimination and
Harassment Issues
• Procedure—Myriad choices and differences
• Federal Court
•
•
•
•
Notice pleading
Limited Jurisdiction
In some instances limits on damages
Jury from all over the Northern District
• State Court
• More exacting pleading standard
• Not as friendly to motions for summary
judgment
• Class Actions—The real money is in class
actions, but:
• Dukes v. Wal-Mart makes class-based discrimination
claims difficult
Discrimination and Harassment Issues
Discrimination and
Harassment Issues
• Other Illinois
laws:
• The Equal Pay Act of
2003 (limited to unequal
pay based on sex)
Discrimination and
Harassment Issues
• Other Illinois
laws:
• Illinois Right to Privacy in
the Workplace Act
(smoking and other
lawful products)
Illinois Tort Law
• Retaliatory
Discharge:
• For having filed a
Workers
Compensation
claim
• For protesting
against violations
of clear public
policy (also
covered by Illinois
Whistleblower Act)
Illinois Tort Law
• Libel and slander (usually in connection
with discharge)
• Assault and battery
• False imprisonment
• Negligent hiring
• Negligent Retention
Labor Law
• Concerted
Protected Activity—
Important because
it applies to all
employers in
interstate
commerce
• Facebook
• Twitter
Labor Law
• Representation Questions
• Bargaining Unit questions
• Unfair Labor Practices
Benefit & Leave Law
• Family and Medical
Leave Act (FMLA)
• Employment
Retirement Security
Act of 1974 (ERISA)
• Health Insurance
Portability and
Accountability Act
(HIPAA)
• Consolidated Omnibus
Budget Reconciliation
Act (COBRA)
Other Regulatory Schemes
• Unemployment
• Workers compensation
Other Relevant Laws
• Fair Credit Reporting
Act—Includes
criminal background
checks, as well as
credit
Other Relevant Laws
• Fair Credit Reporting
Act—Includes
criminal background
checks, as well as
credit
• Worker Adjustment
and Retraining
Notification Act of
1988 (WARN)—mass
layoffs
Government Employers
•First Amendment
•Equal Protection
•Due Process
Conclusion
•Although L&E is limited, it is
surprising how many
different laws apply
•Most important service N&L
can provide is issue
identification