Tag Archives: Cook County

Is Your Company Ready For the Chicago and Cook County Sick Leave Ordinances Effective July 1, 2017?

Contributed by Sara Zorich and Beverly Alfon, May 3, 2017

51162387 - calendar on white background. 1 july. 3d illustration.

calendar on white background – July 1

The July 1st effective date of the Cook County and Chicago Sick Leave Ordinances is quickly approaching and employers must review their paid time off, sick and vacation policies now to ensure compliance with the new ordinances. Some of the key similarities and differences of the ordinances’ provisions are highlighted below:

Similarities:

  • Covered Employee – An employee who: (1) works for an  employer at least 80 hours within any 120-day period; and (2) performs at least 2 hours of work in Cook County (or the City of Chicago depending on the ordinance being applied) during any 2 week period — including driving through county (or city) for business purposes.
  • Accrual Rate – Employees earn 1 hour of earned sick leave for every 40 hours they work.
  • Cap – Employees can earn up to 40 hours of paid sick time per 12 month period.
  • Carryover – 20 hours for non-FMLA employers but if the employee is FMLA eligible, an additional 40 hours may be carried over for FMLA purposes only.
  • Permitted Use – Employee’s own or family member’s illness, injury, medical treatment or diagnosis, preventative care; also domestic violence or sexual assault, or public health emergency closure related to child’s school or care facility.
  • Family Member Definition – Employee’s child, legal guardian or ward, spouse, domestic partner, parent, spouse or domestic partner’s parent, sibling, grandparent, grandchild, including step and foster relationships, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
  • Restriction on Use – Generally, only 40 hours of paid sick leave may be used per 12 month period.  However, if the employee is eligible to carry over additional paid sick leave hours for FMLA purposes, up to 40 hours can be used for FMLA purposes only, and an additional 20 hours can be used for other purposes – for a total of 60 hours.
  • Employee Notice to Company – Employers can require the employee to give up to 7 days notice if need for leave is reasonably foreseeable (e.g., prescheduled appointments, court dates). Otherwise, the employee may give the employer notice of the need for leave as soon as practicable via phone, email or text message.
  • Payout – No payout at termination.
  • Posting Requirements – Both written notice with first paycheck after 7/1/17 and poster (to be created by the enforcing agency).
  • Documentation – An employee may be required to provide documentation to support absence of more than 3 consecutive work days.
  • Retaliation – No retaliation for using accrued sick leave under the ordinance.

Differences:

  • Employer coverage is only required if you have a “place of business” in Cook County, whereas in Chicago an employer is subject to the ordinance if they “maintain a business facility” in Chicago or are subject to Chicago’s business licensing requirements. This means that more employers outside of Chicago may be subject to the ordinance solely because they have a Chicago business license.

Key Issues to Consider

Employers must take the time to carefully review their existing policies to determine if their policies are compliant with the new ordinances or if changes need to be made. Issues for the company to consider include:

  • Do you have a paid time off or sick leave policy?
  • Have attendance and administrative processes been updated to reflect the requirements of the law (e.g., receiving notice of unforeseeable leave by phone, email, or text message)?
  • Are federal or local disability laws implicated by an employee requesting or taking leave, or returning to work from leave?
  • What procedures are in place to engage in the reasonable accommodation interactive process?
  • Have employment policies been vetted by experienced employment counsel?

Along with these general issues, there are some “tricky situations” employers with multiple locations must consider:

  • Will the company change its sick policy or create a new policy for all Illinois employees?
  • How to address and track when an employee triggers accrual when that employee’s normal business location is not in Cook County or Chicago?

The Cook County Commission on Human Rights has issued its proposed regulations governing the Ordinance which can be found under downloads on the Cook County website. Any entity can submit comments to the Cook County Commission on Human Rights by mail and/or email (human.rights@cookcountyil.gov) by May 8th.  SmithAmundsen is working on its submission to the commission for clarification of some of the proposed regulations.

It should be noted that certain municipalities have opted out of the requirements of the Cook County ordinance: Barrington, Bedford Park, Elmwood Park, Mount Prospect, Oak Forest, River Forest, Rosemont, Schaumburg and Tinley Park. More municipalities are expected to opt out prior to July 1.

Paid Sick Leave Requirements Expand to Cook County Suburbs

Contributed by Beverly Alfon, October 11, 2016

Last week, the Cook County Board passed a paid sick leave ordinance that requires most employers in Cook County to provide paid sick leave for their employees. It will take effect on July 1, 2017 and basically mirrors the requirements of a City of Chicago paid sick leave ordinance that passed earlier this year.

The county ordinance requires a covered employer to provide to eligible employees up to 40 hours (5 work days) of paid sick leave in a 12-month period. The 12-month period begins as soon as the covered employee begins employment or July 1, 2017, whichever is later. 

sick-leaveCoverage.  A covered employer is any individual, group of persons or entity that employs at least one “covered employee” and has its principal place of business within Cook County.  A covered employee is any individual who performs at least 2 hours of work for your company within Cook County, during any two-week period, including time that you pay the employee while s/he is traveling within Cook County for business purposes (e.g., deliveries, sales calls, service calls, etc.).

Eligibility. The employee must work at least 80 hours for your company within any 120-day period.

Accrual. Accrual of paid sick leave for an eligible employee is capped at 40 hours of paid sick leave in each 12-month period, which is calculated from the beginning of either the 1st calendar day after the start of the employee’s employment or July 1, 2017, whichever is later. Employees will accrue 1 hour of paid sick leave for every 40 hours worked. For employees who are exempt from overtime requirements, the ordinance assumes a 40-hour work week; however, if the exempt employee works less, the accrual will be based on the employee’s normal week.

Usage.  The earned sick leave time may be used for recovering from illness or injury, medical treatment, diagnosis or preventative care for the employee or the employee’s child, parent, spouse, domestic partner, sibling, grandparent, grandchild, including step and foster relationships, and “anyone whose close association with the employee is the equivalent of a family relationship.” It may also be used for matters related to domestic violence or sexual assault; and, when an employee must care for a child due to a public health emergency closure related to the child’s school or care facility.

An employee must be able to start using earned sick leave by at least the 180th day following his/her first day of employment. Usage of earned sick leave is also generally capped at 40 hours for each 12-month period of employment (calculated from the date the employee began to accrue the sick leave), unless an employer sets a higher limit.  All eligible employees can carry over up to 20 hours of their unused paid sick leave to the next 12-month period. If an employee is also eligible for leave under the Family and Medical Leave Act, the employee can carry over the standard 20 hours, plus up to 40 hours of his/her unused sick leave to use exclusively for FMLA purposes. This means that an employer has a potential burden of providing 60 paid sick leave hours in a 12-month period!

A minimum increment requirement can be set by the employer, but it cannot exceed 4 hours per day. If an employee’s sick leave absence is 3 or more consecutive work days, an employer may also require employees to provide certification or documentation to support the reason for the leave.

Unlike earned vacation, there is no payout requirement for earned but unused paid sick leave time upon separation from employment.

Posting and Notice Requirements.  Employers will be required to issue written notice to new employees and display a poster notifying employees of their rights under the ordinance. The notice and poster will be created and made available by the Cook County Commission on Human Rights.

Employee Recourse.  The ordinance contains non-retaliation/non-discrimination language with respect to any employee’s good faith exercise of rights under the ordinance. It also prohibits an employer from using an attendance policy to discipline, discharge, or take any other adverse action against an employee for any bona fide use of the paid sick leave time. For any alleged violations of the ordinance, employees may pursue civil court actions against employers to recover the value of up to three times the amount of unpaid sick time denied or lost, plus interest and attorneys’ fees and costsClaims are subject to a 3-year statute of limitations.

Exceptions.  The ordinance does not affect existing collective bargaining agreements.  Once the collective bargaining agreements expire, however, the ordinance will apply to a covered employer unless the union and employer clearly and explicitly waive the ordinance requirements. With or without a waiver, however, the ordinance will not apply to any employee who works in the construction industry and is covered by a collective bargaining agreement.

Existing Paid Time Off (PTO) Policy. The ordinance provides that an employer has an existing PTO policy that grants covered employees paid leave “in an amount and manner” that meets the ordinance’s requirements, the employer does not need to provide additional paid leave. However, a broad reading of this language suggests that even if you have a PTO policy that provides for at least 5 days’ leave, you must ensure that how the leave can be used and carry over minimum requirements are up to par.

If an employer’s PTO policy provides a full bank of 40 hours immediately upon eligibility (versus an accrual system), then the employer must provide each covered employee at least 40 hours of PTO within one calendar year of his/her date of eligibility.  In other words, regardless of the accrual rules, the covered employee must get to use at least 40 hours of paid sick leave within each 12-month period.

Next steps:  Determine if you are a “covered employer” and which of your employees are covered under this ordinance. If you are a covered employer, then:

  • Review your PTO, sick leave and attendance policies for compliance and need for modification.
  • Train your human resources personnel and supervisors regarding the requirements and prohibitions under the ordinance, especially if they are involved in monitoring attendance and issuing related discipline.

For those employers who are NOT covered by the Chicago or Cook County ordinances, be mindful of the Illinois Sick Leave Act, effective January 1, 2017, which requires certain flexibility with respect to employee use of sick time.

The Cook County Wage Theft Ordinance Makes Compliance with Federal and State Wage and Hour Laws Even More Important

Contributed by Julie Proscia

The Cook County Board of Commissioners recently passed an ordinance which prohibits any company or individual who is found guilty or liable of wage theft from obtaining Cook County procurement contracts, business licenses or property tax incentives for up to five years. The ordinance is effective May 1, 2015. Cook County is now the largest municipal entity in the United States to have passed an ordinance of this nature.

Under the new Cook County Wage Theft Ordinance, businesses found to have violated the Fair Labor Standards Act (FLSA), Illinois Wage Payment and Collection Act, Illinois Worker Adjustment and Retraining Notification (WARN), Illinois Employee Classification Act, and/or any other similar state laws regarding the payment of wages may find themselves ineligible to do business with the County of Cook.  This is applicable to any person or entity who, within the prior five-year period, has admitted or has been adjudicated liable in any judicial or administrative proceeding of committing, absent a finding of “good cause,” a repeated or willful violation of federal or state wage payment laws. Under the terms of the ordinance, a business violator may:

  • become ineligible and/or disqualified from receiving or renewing business licenses in Cook County;
  • be barred from contracting with Cook County;
  • be found in default under existing Cook County contracts; and/or
  • become ineligible for property tax incentives.

As of May 1, 2015, businesses requesting tax incentives from the Cook County Assessor must certify, under oath, that for the past five years they have not been found in willful or repeated violations of federal or state wage and hour laws. Unless an express waiver is granted by the County Board, any person or business that has been found liable for a repeated or willful violation of state or federal wage payment laws will be ineligible for tax incentives. Moreover, if the County Assessor becomes aware that an employer has violated wage and hour statutes within the prior five years, the Assessor has the authority to revoke the incentive or classification unless the employer cures the violation within 45 days.

The new ordinance also requires that any person seeking to contract with the County of Cook must certify, under oath, that the applicant has not been found to have repeatedly or willfully violated federal or state wage and hour laws anywhere in the country, either by an administrative agency or a court. If a violation is deemed to have occurred, the County Chief Procurement Officer has the authority to issue a notice of default under existing contracts.

Because of the ramifications of the new Wage Theft Ordinance, it is even more important than ever that entities and individuals that do business within and with the County of Cook are in compliance with federal and state wage and hour requirements.  It is also important that, if your business has been found in violation of federal or state wage and hour laws in the prior five years, you have any applicable application to the County of Cook reviewed by counsel prior to submission to ascertain if a waiver can be sought or asserted. Lastly, it is imperative to have counsel involved in any settlement agreements that are drafted to ensure that the wording utilized does not inadvertently solve one problem while creating others.

Illinois Supreme Court Denies Review of Fifield . . . Now What?

Contributed by Jeff Glass

The Illinois Supreme Court has declined to review the Fifield decision.  Fifield is the June 2013 case where the Illinois Appellate Court for the First District (Cook County) held that employment at will was not adequate consideration for a restrictive covenant (i.e., non-competes, non-solicitation clauses, etc.)   This was a change in the law since, historically, employers did not have to offer any extra consideration when new hires signed restrictive covenants. 

Under Fifield, employers whose employees had signed restrictive covenants would need to either provide them with consideration like a signing bonus, or hope that they stayed on for two years since Illinois courts have held that the consideration requirement is satisfied by two years of subsequent employment. 

Now that the Illinois Supreme Court has declined to review Fifield, employers face certain realities.  If you are in Cook County, Fifield is controlling law.  Your employees may be emboldened to test the enforceability of their covenants. The most aggressive way to address that risk would be to have employees sign new covenants and provide them with consideration.  That can be expensive.  However, the consideration need not be a cash payment.  There are creative ways to structure consideration such as severance, additional vacation, etc. 

Alternatively, employers can offer consideration only to employees that may do harm if they leave.  That is cheaper but creates its own problems since employees who don’t receive anything will grumble.  This problem can be reduced, but not eliminated, by rolling out bonuses in performance reviews or similar one-on-one settings.  

Another option is to offer nothing and hope that they stay for two years.

In the event you must litigate this issue, you do have arguments.  Although Fifield is being interpreted as altering the rules for new hires, the facts before the court were that: (1) a long term employee’s employer was sold; (2) the new employer “fired” everyone and then re-hired them the next day; but (3) required a non-compete as a condition of re-hire.  It really was analogous to having an existing employee sign a non-compete, which traditionally requires additional consideration or continued employment of two years.  Fifield should be confined to its facts. 

Still further, the cases Fifield cited were not on point and it failed to cite, let alone distinguish, the multitude of cases holding to the contrary. So, if you need to litigate Fifield, it isn’t hopeless.  But you will have an uphill battle. 

If you are not in Cook County, the argument would be that, in addition to the problems just discussed, the First District’s flawed decision should not be binding on the other Districts. Ideally, one of the other Districts will reject Fifield, creating a split among the Districts and giving the Supreme Court another opportunity to take up the issue.