labor lawAdivision of labor law center

A recent Chicago case underscores the need for every employer to be familiar with local anti-discrimination ordinances, as well as state and federal law.

An Illinois employer was recently forced to pay more than $300,000 for parental discrimination against a working mother. The award included $87,000 in attorney fees and $100,000 in damages.

A local Chicago ordinance prohibits employment discrimination against parents. While many municipalities have such laws, employers have shown little concern for them in the past, because monetary awards under such laws were rare.

In the Chicago case, a 39-year-old working mother of two employed by a healthcare company was paid a lower (more…)

New regulations on FMLA will affect nearly every employer in Illinois.

On February 11, 2008, the U. S. Department of Labor proposed new FMLA (Family and Medical Leave Act) regulations. Theses regulations include many changes for employers. Until April 11, 2008, when the regulations go into effect, employers have the option to make comments on them.

To make comments, employers can click this link. Once on the site, enter the words “Family and Medical Leave Act” encased in quotes. Before adding comments, employers need to be aware that this site is public.

“Substitution of paid leave” is one of the changes in the new regulations. The law doesn’t require employers to pay workers who are on FMLA leave, but it does allow employees to take FMLA and any accrued sick leave at the same time. This substitution of paid leave includes all PTO (paid time off); including vacation time and personal leave. To take PTO, however, the worker must meet all the company’s requirements regarding leave usage.

To illustrate, consider James who has a total of 10 weeks paid time off. Two weeks are sick time, three are personal and the remaining five are vacation. Before the implementation of the new FMLA, James would only be able to use the two weeks of sick time while on FMLA leave. When the new regulations go into effect, James can utilize all 10 weeks of accrued leave.

Once his PTO is used, James will then be entitled to 2 weeks of unpaid FMLA leave. Thus, James has effectively substituted PTO for part of his FMLA leave.

Under the new FMLA regulations, the employer is permitted to require workers to use up all PTO before charging time to FMLA leave.

Another change in the new FMLA regulations changes a policy regarding employee attendance. Previously, FMLA time did not count toward a worker’s absence, which meant an employee who took 12 weeks of FMLA could still qualify for a “perfect attendance” award, often earning bonuses, too. With the new regulations, FMLA leave will be considered the same as any non-FMLA absences, so workers will no longer be eligible for perfect attendance awards.

More Illinois FMLA Changes

On February 11, 2008, the U. S. Department of Labor proposed a number of changes to the FMLA (Family and Medical Leave Act) regulations. Employers will have close to two months to comment on these changes. On April 11, 2008, the regulations will be in effect and in force.

The U. S. Department of Labor’s Victoria Lipnic made the following statement. “It’s time to update these regulations — to reflect court decisions, clear up ambiguities and address issues that weren’t contemplated when the regulations were first issued in 1995.”

A majority of the new regulations address the definition and medical certification of the worker’s “serious health condition”.

When a worker has a “serious medical condition”, FMLA allows him or her to take up to 12 weeks of unpaid leave per 12 month period. In addition to using FMLA for him or herself, the leave can be taken to care for a family member with a “serious health condition.” According to FMLA, family member is defined as a parent, spouse or child.

To be eligible for FMLA leave, employers usually require that a healthcare practitioner certify the “serious medical condition.” The U. S. Department of Labor supports this practice to avoid employee’s abusing the leave.

Even when certification is provided, employers can, in some cases, request a second or third opinion. These visits must be paid for by the employer.

The new rules retain six of the definition for a “serious medical condition” and provide additional clarification of 2 terms. One of these six definitions requires that the “serious medical condition” involve greater than 3 days of incapacitation, and “two visits to a health provider”.

The term “two visits to a health provider”, however, is without a time frame. Is it two visits a week, a month, or a year?

The Tenth Circuit court ruled that the visits must occur during the incapacitation period. U. S. Department of Labor, however, will amend the rule such that the two visits are required within 30 days of the incapacity.

OSHA, the federal Occupation Safety and Health Administration, warns Illinois employers that employees can be injured by exposure to cold weather in the workplace, even at as mild a temperature of 50 degrees.

With the recent winter storms in the Midwest which knocked out power for nearly a month, Illinois employers and those across the nation need to be aware that cold weather exposure can cause cold stress, frostbite and hypothermia.

Outdoor workers are particularly susceptible to cold weather hazards, but with winter upon the country, all employees could be at some level of risk according to OSHA.

Cold stress is a condition where the body can no longer warm itself. The colder the temperature, the more the body works to create body heat. All internal organs are given priority, which means that blood is taken away from the outer limbs. In these cases, ears, the nose, feet, hands, toes and fingers are in great risk of frostbite.

Hypothermia is a serious drop in body temperature, and can be fatal. Cold stress is a less serious form of hypothermia. In severe cases, however, cold stress can cause permanent injury and can result in death.

Certain workers need to be aware that they may be more susceptible to these cold weather related illnesses. Older employees, employees on sedatives or tranquilizers, and those on antidepressants may be at greater risk. Medications can interfere with the body’s ability to warm itself, and as people age, their bodies become less efficient at keeping warm.

A few simple safety measures can help all employees prevent these cold weather illnesses. All employees should dress for the weather. Wet and windy conditions, even at 50 degrees can cause cold stress, so workers should dress appropriately. Layers of clothing are recommended, as is having extra clothing on hand in case something gets wet.

Workers should also take lots of breaks and go inside, or to a warm area out of the wind, wet and cold. Warm drinks like broth are recommended, as are warm meals rich in carbohydrates.

Workers should avoid alcohol and all caffeine drinks. Both diminish the body’s ability to warm up.

Cold weather can expose workers to several cold-related injuries and illnesses. The federal OSHA (Occupational Safety and Health Administration) and the Illinois OSHA recently issued alerts warning of the dangers of Cold Stress and Trench Foot in the workplace.

Cold stress occurs when the body is unable to warm itself. Mild cases can be usually be treated by moving the employee to a warm, dry area. Severe cases can lead to hypothermia, however, which can be fatal.

Trench Foot is similar to frostbite, but less severe and was first named in World War I. Soldiers fighting that war often stood for long periods of time in trenches that were filled with water. This exposure to the water caused the soldiers’ feet to itch, burn and blister–similar to the conditions of frostbite. Trench Foot is a sign of cold stress and can put employees at risk for injury.

Preventing Cold Stress and Trench Foot requires the employees to take certain steps.

First, all workers must dress appropriately for the weather, especially those employees who work outside. OSHA recommends dressing in at least three layers, with the outer layer made of fabric to specifically cut the effects of wind. Second, all workers should wear hats. Third, footwear should be insulated and waterproof.

Even in milder temperatures, water and wind can significantly lower the body’s temperature. Wind chill, the combination of temperature and wind speed can make the skin feel colder than what is on the thermometer. Stronger winds mean colder wind chills, and colder body temperatures.

In addition to dressing properly, employees can watch each other for symptoms of cold stress by working in pairs. At the first signs of cold stress, the worker should move out of the cold and remove any wet clothing. Dry clothing, if available, should replace the wet ones, or the worker should be wrapped in warm blankets. Give the employee warm beverages, but nothing that contains alcohol or caffeine. Both of these substances can interfere with the body’s capability of staying warm.

A deadly shooting at a suburban Illinois strip mall is just the latest in a months-long series of shootings in the workplace.

Although federal statistics for 2007 show that workplace violence is down, a number of very high-profile incidents belie that trend.

On February 2, a gunman attempted to rob a Lane Bryant women’s clothing store in Tinley Park, a middle-class suburb southwest of Chicago.  The robbery apparently went wrong, and the gunman killed herded five women into the back room of the store before killing them execution-style.

The shooting occurred about 10:30 am. Police shut down the mall and searched the stores, but were not immediately able to locate the gunman.

The victims were identified as shoppers and workers aged 22 to 37.

One victim, Carrie Hudek Chiuso, 33, was a high-school social worker from Frankfort, Illinois who was shopping. Frankfort is a far-south suburb of Chicago. Students at Homewood-Flossmoor High School had counselor’s available to talk with about the death of the well-loved counselor. Ironically, this is exactly the type of team that Chiuso would have led, in the past.
The gunman apparently targeted a women’s clothing store specifically to reduce the chances that he would have to deal with male employees or customers.

Nationwide, according the Bureau of Labor Statistics, murders at work decreased from 200 per year in the early 1990s to just 94 in 2006. However, a number of recent violent incidents show that employers still need to be aware of violence in the workplace.

A 10-hour standoff on October 5, 2007 ended when a gunman in a downtown law office in Alexandria, Louisiana was shot and killed by police. The episode was one of several cases of workplace violence in past months. The 63-year-old retired city maintenance worker killed two people, including the son of one of the attorneys and a postal worker who happened to be delivering mail in the building at the time.

Alexandria mayor Jacques Roy said police got into the building after using explosives, and John Ashley, the gunman, died in a shootout. Ashley battled police attempts to rescue the law office staff. Finally two workers, both injured, managed to elude the gunman and escape, and police rescued a third. Injured were two attorneys – one of them the father of one of those murdered – and a legal secretary.

Virginia Tech was the site of the worst workplace violence incident in 2007, when a young man wounded 17 students and staff and killed 32 others before turning his gun on himself. The Occupational Safety and Health Administration, OSHA, says the gunman, Seung-Hut Cho showed signs of workplace violence. He was not being treated for his mental health problems, he had outbursts of rage, and had an obsession with weapons.

At an Orlando Denny’s restaurant on International Drive, a 40-year-old waitress was killed over the Labor Day weekend when her estranged husband attacked her with a knife. The assailant, chased by customers and employees, escaped by leaping a fence, leaving behind his bloody knife and one of his shoes.

Another school, Delaware State University in Dover, Delaware, was the site of a tragic event in September 2007. A gunman shot two students to death near a college dining hall. The university was locked down and all of its 1,700 students were restricted to their dormitories.

In late fall, near the University of Wisconsin Madison, a gunman attempted to get himself shot and killed by police by reporting a bogus bomb threat to a nearby hospital and firing off his weapon. An officer at the scene described the episode as “a simple case of attempted ‘suicide by cop.’”

All Illinois businesses are required to display the 300 form from February 1, 2008 to April 30, 2008.  This is required by the Occupational Safety and Health Administration, or OSHA.

The OSHA 300 forms provide a recap of any work-related illnesses or accidents that happened in 2007.  The form also states the causes of those illnesses or accidents.  The form has to be posted in an area that is readily accessible to all employees.  Some popular locations include the time clock, or the employee break room.  No regulations require that the Illinois OSHA 300 form be placed in a public area.

The Occupational Safety and Health Administration is the federal agency that is charged with safety in the workplace.  This organization regulates most private businesses and non-profits in the United States.  There are a few industries that have their own worker safety organizations under federal law.  For example, the Mining Safety and Health Agency (MSHA) regulates the mining industry.  The reason for this is that the safety standards in the mining field are very different from those in most businesses.  The Department of Transportation heavily regulates the railroad and transportation industries.  These particular rules include many that involve worker safety.

The Occupational Safety and Health Administration offers free safety consultation and advice.  They also perform inspections, as well as enforce all worker safety regulations and laws.

OSHA sources say, “Employers are responsible for providing a safe and healthful workplace for their employees.  OSHA’s role is to assure the safety and health of America’s workers by setting and enforcing standards; providing training, outreach, and education; establishing partnerships; and encouraging continual improvement in workplace safety and health.”

A portion of each employer’s responsibility is to display the OSHA 300 log in addition to the OSHA – It’s the Law Poster.

The purpose in the OSHA 300 form is to show the accidents from the previous year at the place of business.  The point in this, of course, is to prevent future problems.

In Illinois, one of the major goals of the Occupational Safety and Health Administration is reducing and preventing workplace accidents.  Companies can help by ensuring that employees follow all safety precautions.  Coworkers should frequently be reminded of the importance of health and safety.

In most states that have state worker safety agencies, rather than OSHA, require a version of the OSHA 300 form.  In Washington, for instance, every employer is required by the state government to post a Washington OSHA form in order to keep track of work-related injuries and illnesses.  The form has to be posted from February 1 to April 30 each year.  What the form does is recap all work-related injuries and illnesses.  This way, workers can ascertain the safety of their company for a specific calendar year.

There is a set of regulations regarding health standards and job safety that were established by the federal government.  More than half of the states follow these regulations.  There are 22 states that chose to opt out of the federal OSHA program.  Washington happens to be one of them.  According to federal regulations, each state’s OSHA plan must be at least as effective as the federal OSHA.  The majority of states follow OSHA regulations.  Because of this, most of the state OSHA programs are almost exactly like the federal program.

The Washington Occupational Safety and Health Administration conducts its own safety inspections, since it has its own OSHA program.  The program also offers health training and occupational safety programs.  The Washington OSHA, like the federal OSHA, offers on-site consultation to assist employers in learning how to observe and fix workplace hazards.  The service is free.

There are some other state worker safety organizations that have similar regulations.

Most states only make public workplace hazards stated in federal standards, but California makes public workplace hazards that the federal OSHA standards do not cover.

States have the option of having their own OSHA policy, but that policy must be approved by the federal government prior to any state being allowed to use it.