Tag Archives: IDOL

“Ban the Box” Comes to Illinois: Employers Must Now Revise Hiring Practices and Employment Applications

Contributed by Jeffrey A. Risch and John J. Lynch

The Illinois “Job Opportunities for Qualified Applicants Act” has been approved by the Illinois legislature. It was sent to Governor Quinn on June 27, 2014, and he is expected to sign it into law.

Once signed (or if the Governor doesn’t veto it by August 27, 2014), the Act would go into effect January 1, 2015. Illinois would become the fifth state on a growing list of states (currently Massachusetts, Rhode Island, Minnesota and Hawaii) to enact “ban the box” legislation that applies to public and private employers. Another five states (California, Colorado, Connecticut, Maryland and New Mexico) have laws prohibiting state government employers from asking about conviction records. Additionally, approximately 50 cities and counties throughout the United States have similar ordinances that apply to the municipalities and, in some cases, vendors who do business with those municipalities.

In anticipation of the new Illinois law, and the trend among states to adopt such laws, employers should prepare to review and, if necessary, modify their job applications and hiring policies and procedures to ensure compliance with the Act.

The Act applies to employers with 15 or more employees or employment agencies working on behalf of such employers. It forbids those employers and employment agencies from inquiring about a job applicant’s criminal record or criminal history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment.

Once an applicant is selected for an interview or receives a conditional offer of employment, the employer may make inquiries into the criminal record or history, including conducting a criminal background check. That is, they can do so without violating the Job Opportunities for Qualified Applicants Act. Employers should be aware that such inquiries still may run afoul of Title VII and the Illinois Human Rights Act, depending on the position in question – consideration of conviction records still must be job related and consistent with business necessity.

The Job Opportunities for Qualified Applicants Act does contain three exceptions. First, the Act does not apply to positions from which federal or state laws require the exclusion of applicants with certain criminal convictions.

Second, the Act does not apply to positions that require a standard fidelity bond or equivalent bond and an applicant’s conviction on one or more specified criminal offenses would disqualify the applicant from obtaining such a bond. In that case, the employer may include a question during the application process whether the applicant has ever been convicted of any of those offenses.

The third exception is for applications for positions that are licensed by the Emergency Medical Services Systems Act (210 ILCS 50/1 et seq.).

Employers should note that they are allowed to notify applicants in writing, before or during the application process, of specific offenses that will disqualify the applicant from employment in a particular position due to federal or state law or the employer’s policy. Again, however, compliance with the Job Opportunities for Qualified Applicants Act may not insulate an employer from scrutiny by the EEOC, the Illinois Department of Human Rights (“IDHR”), or other agencies that investigate alleged discrimination – they may find such inquiries not to be job related and consistent with business necessity.

Potentially complicating matters is that the Job Opportunities for Qualified Applicants Act will be enforced by the Illinois Department of Labor (“IDOL”), not the IDHR.

The IDOL is authorized by the Job Opportunities for Qualified Applicants Act to investigate alleged violations and impose the following civil penalties:

For the first violation, the IDOL will issue a written warning requiring compliance within 30 days and a notice that non-compliance and/or further violations may lead to additional penalties.

For a second violation, or failure to remedy the first violation within 30 days, there is a civil penalty of up to $500.

For the third violation, or failure to remedy the first violation within 60 days, there is a civil penalty of up to $1,500.

For any subsequent violations, or failure to remedy the first violation within 90 days, there is a civil penalty of up to $1,500 for every 30 days that pass without compliance.

The Act does not contain a private right of action; that is, an applicant cannot (yet) sue an employer for a violation of the Act. The applicant will have to make a claim to the IDOL, which will investigate. The fines collected will be used only to fund enforcement of the Act, so employers can expect the IDOL to be aggressive in its enforcement in order to increase its resources to enforce the Act.

The Act also empowers the IDOL to adopt rules and regulations to administer the Act. That has not happened yet, of course; but continue to follow the blog for updates on that issue.

Surveyors and Material Testers Now Subject to Prevailing Wage Laws??? Unions Continue to Have Their Way with Prevailing Wage

Contributed by Jeffrey A. Risch

On March 22, 2013, under pressure from the International Union of Operating Engineers, the U.S. Department of Labor (DOL) published its Memorandum No. 212 on the topic of whether surveyors, survey workers and survey crew members who perform work related to federal construction projects fall under Davis-Bacon and other related acts; thereby triggering the application of federal prevailing wage law to such workers.  Despite the DOL’s explanation that it was merely clarifying and supplementing prior DOL Memorandums from the 1960’s, the March 2013 Memorandum signaled a dramatic shift in the DOL’s interpretation.  For the first time, the DOL believes that surveyors, survey workers and survey crew members who perform work on federal construction projects may be subject to federal prevailing wage law.  The emphasis is on the word “may” because attempting to interpret the meaning behind the DOL’s guidance is mind-numbing.

Memorandum No. 212, reads in relevant part:

Survey crew members who perform primarily physical and/or manual work while employed by contractors or subcontractors immediately prior to or during actual construction in direct support of construction crews, will be deemed laborers or mechanics when employed on-site of the construction work.  Also, under the U.S. Housing Act of 1937 and the Housing Act of 1949, the “development of the project” coverage test is broader and thus may allow prevailing wage to cover preliminary survey work.  The question of whether a survey worker is a laborer or mechanic is a question of fact to be interpreted by the DOL.  Additionally, the DOL goes on to remind the public that bona fide “white collar” exempt employees under the Fair Labor Standards Act 29 CFR 541 (FLSA), such as Professionals, Executives and Administrators, continue to be exempt from federal prevailing law.

http://www.dol.gov/whd/programs/dbra/Survey/AAM212.pdf

Confused yet?  Most everyone is.  And if trying to comply with federal prevailing wage changes is not hard enough, some states continue to expand the scope of their own prevailing wage laws.  For example, Illinois, by and through the Illinois Department of Labor (IDOL), has allowed the operating engineers to petition successfully for recognition of work that has historically not been covered by the Illinois Prevailing Wage Act.  Most recently, through persuasion from organized labor, the IDOL has made determinations on its own (without statutory amendments to the actual law) to include Material Testing and Surveying on Illinois construction projects.

According to the IDOL’s prevailing wage rate sheets, Material Testing is defined as:

MATERIAL TESTER I:  Hand coring and drilling for testing of materials; field inspection of uncured concrete and asphalt.

MATERIAL TESTER II:  Field inspection of welds, structural steel, fireproofing, masonry, soil, facade, reinforcing steel, formwork, cured concrete, and concrete and asphalt batch plants; adjusting proportions of bituminous mixtures.

The IDOL rate sheets now also include Survey Worker, defined as:

SURVEY WORKER – Operated survey equipment including data collectors, G.P.S. and robotic instruments, as well as conventional levels and transits.

Historically, Illinois’ prevailing wage law did not cover testing or inspection activities.  The personal and professional opinion of this writer is that the Illinois Legislature never contemplated such activities to fall under Illinois’ Prevailing Wage Act.  Furthermore, despite clarity from the U.S. DOL that “professional exempt” workers would not fall under the federal prevailing wage law, the IDOL need not adopt federal guidance with regard to Illinois’ prevailing wage law.  Unfortunately, the courts will have to intervene and provide clarity.  Until then, interested parties should work with competent legal counsel and various trade associations for insight and assistance.

Appellate Court Issues First Published Decision on Illinois’ VESSA Law: Affirms Decision in Favor of Employer

Contributed by Sara Zorich & Jeff Risch

Illinois’ Victim’s Economic Security and Safety Act (VESSA) became effective on August 25, 2003 (820 ILCS 180 et. seq.). VESSA was enacted to:  1) promote the State’s interest in reducing domestic or sexual violence by enabling victims to maintain financial independence to leave abusive situations and to reduce the economic consequences of such violence to employers and employees; and 2) protect the employment and civil rights of employees or their families who are victims of domestic or sexual violence. VESSA provides employees working for both small and large employers, with special leave entitlements and workplace protections. 

Since the law’s enactment, all VESSA related controversies have been contained within the Illinois Department of Labor (IDOL) — the lone State agency that administers, enforces and adjudicates such claims.  However, on February 15, 2012, the Appellate Court for the 2nd District of Illinois, affirmed an IDOL decision that concluded when a victim is not utilizing a leave of absence for purpose permitted by VESSA, then that victim is not protected under the lawSee Sustatia v. Illinois Department of Labor et. al. No. 2-10-1230.

VESSA provides that an employee working for an employer with at least 15, but not more than 49 employees, shall be entitled to a total of 8 workweeks of unpaid leave during any 12-month period. Employees working for an employer with at least 50 employees are entitled to a total of 12 workweeks of unpaid leave during any 12-month period. Employers are also specifically prohibited from interfering with, restraining, or denying an employee’s attempt to exercise any rights under the law.

An employee may take VESSA leave to:

  1. Seek medical attention for, or recovery from, physical or psychological injuries caused by domestic or sexual violence to the employee or employee’s family or household member;
  2. Obtain victim services for the employee or employee’s family or household member;
  3. Obtain psychological or other counseling for the employee or the employee’s family or household member;
  4. Participate in safety planning, including temporary or permanent relocation or other actions to increase the safety of the victim from future domestic or sexual violence; or
  5. Seek legal assistance to ensure the health and safety of the victim, including participating in court proceedings related to the violence.

Under the Act, an employer may require that the employee certify that he/she is a victim of domestic or sexual violence and that the leave is for a purpose enumerated in the VESSA statute with a certification and additional documentation including documentation from a professional assisting in the proceeding, a police or court record or other corroborating evidence.

The facts of this case are very detailed. The following serves as a mere summary of conclusory facts adduced by the Appellate Court:

Sustatia requested leave from work to attend a May 8, 2006 court proceeding regarding a domestic battery charge she brought against her boyfriend. West Suburban Bank, her employer, requested that Sustatia corroborate her leave request and sign a sworn statement that the leave was related to her participation in a court proceeding regarding her domestic abuse charge.  On May 23rd, Sustatia signed a sworn statement and provided a letter from her non-physician therapist that she was in court on May 8th. West Suburban asked for clarification as to how Sustatia’s therapist was able to corroborate her claim that she was in court on May 8th but none was provided. After numerous and exhaustive requests for the corroborating documentation, the bank’s Vice President of Human Resources requested a meeting with Sustatia regarding the documentation supporting her claim. After numerous attempts for clarification, and becoming increasingly suspicious of Sustatia’s need for leave from work, and the fact that Sustatia failed to appear for a “last chance” meeting, she was terminated on August 16, 2006 for insubordination and misconduct for failure to follow management’s directions in providing written corroboration to validate her alleged court appearance on May 8th.

The plaintiff filed a claim with the IDOL against West Suburban for alleged violations of VESSA. A lengthy hearing was held and the Director of the IDOL found that Sustatia’s testimony was not credible concerning her alleged presence and participation in court on May 8, 2006. The Director further held that Sustatia’s leave of absence on May 8, 2006 was not valid under VESSA since she did not miss work for a statutory enumerated purpose. On February 15, 2012, the Appellate Court upheld the Director’s finding that Sustatia failed to establish she was entitled to leave under VESSA and thus West Suburban had not committed any violation of the Act.

While this case is very fact specific, it establishes that employers have the ability and right to require an employee to comply with statutory provisions of VESSA in order to be eligible for leave under the Act. Employees may only take VESSA leave for the enumerated statutory purposes and employees requesting leave for other purposes are not protected under the Act. Illinois employers should be familiar with the Act and its limitations on employee leave.