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Independent Contractor Versus Employee
When a worker gets paid to do a task or provide a service for another person, the worker is an independent contractor or an employee. The distinction is important both for the business and the worker, but it is not always clear. For a worker, the classification determines the benefits to which he or she is entitled, whether the worker is covered by workers' compensation, and whether the worker is protected by federal and state wage and hour regulations. Employees enjoy substantially more protection in the workplace than do independent contractors.
Whether a worker is an independent contractor or an employee is based on the work performed, not the worker's title. The more control an employer has over a worker, the more likely it is the worker is an employee. On the other hand, the more a worker acts like an independent business enterprise, the more likely the worker is an independent contractor. In some cases, the status is clear: A worker who arrives at a set time every day, is trained by the employer, uses the boss's tools or equipment, and is paid by the hour, week, or month, most likely is an employee. Someone who works for more than one company at a time, sets his or her own hours, and realizes a profit or risks a loss, probably is an independent contractor.
A worker or an employer who is unsure about the legal status of his or her employment relationship can seek advice from the Internal Revenue Service, the Illinois Department of Revenue, the Illinois Department of Employment Security, or the Illinois Department of Labor.
Employment at Will
The state of Illinois recognizes the traditional rule of employment at will. This means that all workers in Illinois are at-will employees unless the employer takes some action to create a different relationship. There are several ways an employer can alter the relationship. An employer might enter into an oral or written contract guaranteeing to employ someone for a specific period of time or promising to terminate the employee only for specified reasons. An employee handbook or collective bargaining agreement may limit the employer's right to terminate employees. Sometimes employers inadvertently limit their right to fire employees if, by their actions, the employers give the employees reason to believe their jobs will continue. For example, if an employer promises a job to someone from out of state and that person moves to Illinois specifically to take the job, the employer probably has changed the employment relationship. The employment is not at will because the employee has gone to the trouble and expense of moving after reasonably relying on the promise of new employment.
The implications of the at-will relationship are far-reaching. Unless there is an agreement to the contrary, an employer may discharge an employee at any time for any legal reason. As long as an employee is not fired for an illegal reason--such as racial or gender discrimination--an employer does not need a good reason to fire someone. Even a silly reason is enough. It also means that an employee may resign at any time, for any reason, with or without giving notice. The employee is free to leave for any reason at all, even if by doing so he or she greatly inconveniences the employer.
Unemployment Insurance
Unemployment insurance provides benefits to employees who are laid off, fired, or forced to leave their jobs. Most employees are covered by unemployment insurance, a program administered by the state and funded by employer contributions.
Not everyone who leaves a job is eligible to receive unemployment benefits. An applicant is not entitled to receive benefits if the applicant
Workers' Compensation
Workers' compensation provides benefits to employees injured in the workplace, regardless of how the injury happened. With few exceptions, all Illinois employees are covered by workers' compensation administered by the Illinois Industrial Commission.
The benefits available to workers include death benefits, permanent or temporary total disability, permanent or temporary partial disability, and medical and related expenses. The benefit amounts are determined by state guidelines and can be as high as two-thirds of a worker's salary at the time of the injury. Workers' compensation is discussed further in the Workers' Compensation Law Chapter.
Social Security
Social Security provides benefits for retired workers. A worker gains Social Security coverage by performing "covered employment," which includes full- or part- time wage or salary work, self-employment, farm work, service in the United States Armed Services, work in private nonprofit organizations, most domestic work, and most federal, state, and local government work. The covered employment must be for a certain amount of time each quarter of the year.
The usual age to begin receiving Social Security benefits is 65; however, a worker has the option of initiating benefits at age 62. The amount of each monthly check depends on how much the worker made each year. The higher his or her pay, the higher the benefits, up to a maximum dollar amount.
Social Security is discussed in greater detail in the Social Security Law and Elder Law Chapters.
In General
Most employment discrimination is outlawed by the two major civil rights acts passed by Congress in 1964 and 1991 and by the Illinois Human Rights Act. Through a combination of these laws, Illinois workers are protected against discrimination based on age, ancestry, arrest record, citizenship, color, creed, disability, marital status, national origin, race, religion, sex, or unfavorable military discharge.
People frequently refer to "Title VII" rights when they are talking about a particular section of the Civil Rights Act of 1964. Title VII prohibits discrimination in a wide number of employment areas, including advertisements for jobs, apprenticeship programs, benefits, firing, hiring, layoffs, promotions, recalls, recruitment, testing, training and transfers. Title VII also prohibits retaliation against a person who files a charge of discrimination, participates in an investigation of discrimination, or opposes an unlawful employment practice.
Under certain extremely limited circumstances employers are allowed to base their employment decisions or practices on a person's marital status, race, sex, etc., if the employer can demonstrate a truly legitimate need. For example, it is legal to hire only women to be attendants in women's locker rooms. Religious institutions may refuse to hire individuals based on their religious beliefs, but only for positions that are directly related to the performance of religious duties; they generally are not allowed to discriminate when hiring individuals for secular tasks such as secretarial or janitorial work.
Certain employers, such as police departments, may base some employment decisions on an applicant's physical abilities. Other types of hiring criteria are allowed if they measure skills that are truly essential for an applicant to have in order to perform a particular job, and if they are not applied in a selective or discriminatory way. For example, an employer may require applicants for administrative jobs to pass typing or computer skills examinations.
Proving discrimination in the workplace depends on the specifics of each situation. Generally, it is easier to prove discrimination from a repeated pattern of behavior rather than an isolated incident. For example, if several Mexican immigrants are passed over for promotions in favor of non-immigrants, and all the people involved have the same qualifications, a good case may be made to charge unlawful discrimination. In addition, any documented evidence showing an employer is prejudiced against a class of people can strengthen a discrimination case. If an employer makes statements such as "blacks don't take orders well" or "women aren't capable of making tough management decisions," this likely will increase an applicant's chances of proving discrimination, especially if the statements are made repeatedly and in the presence of witnesses.
A person who feels that he or she has been unfairly discriminated against or harassed in the workplace may file a complaint with the Illinois Department of Human Rights or the federal Equal Employment Opportunity Commission (EEOC). The Illinois Department of Human Rights enforces the Illinois Human Rights Act, and the EEOC enforces the federal civil rights acts that apply to the workplace. When a person files a complaint with one agency, that agency cross-files with the other agency. A victim of discrimination only has 180 days to file a complaint with either agency. Another option for a victim of discrimination is to hire a private attorney to pursue a claim against an employer. A civil action for violation of the Illinois Human Rights Act must be filed within two years of the termination or other occurrence.
Age Discrimination
The Age Discrimination in Employment Act (ADEA) expands Title VII prohibitions against age discrimination. Most employers may not enforce mandatory retirement policies, except under a few very specific circumstances in which age is a valid qualification for doing a particular job, such as firefighting, police work, or flying airplanes. Anyone age 40 or over who works for an employer with 20 or more employees is protected by the ADEA and cannot be retired against his or her will, regardless of age, as long as he or she can do the job. The Illinois Human Rights Act contains similar provisions that apply to Illinois employers with only one employee. Other federal and state laws prevent discrimination based on age, with some exceptions allowing employers to force an employee age 70 or older to retire.
Discrimination Against Persons with Disabilities
The Americans with Disabilities Act of 1990 (ADA) is a federal law that prohibits discrimination based on a person's physical or mental ability. The ADA makes it illegal to fire or to refuse to hire someone because that person lacks physical or mental abilities that are not essential to the job; the ADA does not change an employer's right to employ only people who have the skills to perform the "essential duties" of a job. For example, an employer may not refuse to hire as a daycare provider a person with epilepsy, simply because the potential employee cannot drive to a hospital in an emergency. In this example, driving is not an essential duty of the job, so it is not a valid reason to discriminate against an applicant who is unable to get a driver's license because of his or her epilepsy.
The ADA requires employers to make "reasonable accommodations" for applicants or employees with disabilities. The employer must do whatever is reasonable to accommodate a person's disability, including modifying work schedules, providing special training, changing the work environment, buying or modifying special equipment, or reassigning to another position an employee who no longer is able to do the "essential duties" of a job. A reasonable accommodation is one that does not place an undue burden on the employer. Using pre-employment tests that identify and exclude applicants with disabilities is permissible only if the tests are unequivocally job-related.
The ADA only protects from discrimination people with permanent conditions that limit a major life activity. Thus, the ADA does not cover an employee who has a sprained ankle that is expected to heal fully, even though that employee is disabled for a period of time. A person with a permanent disabling condition that is controlled by drugs, physical therapy, or by some other treatment is covered by the ADA, such as an epileptic whose seizures are controlled by medication. The ADA also prohibits discriminating against individuals with AIDS or HIV, or people who have completed or are still participating in drug rehabilitation programs. However, an applicant or employee currently using illegal drugs is not protected by the ADA.
The ADA is administered by the EEOC. Discrimination against persons with disabilities also is prohibited by the Illinois Human Rights Act.
Sexual Harassment
Everyone has the right to be free from sexual harassment in the workplace. Sexual harassment is prohibited by the Illinois Human Rights Act and is punishable as an illegal form of sex discrimination under Title VII of the Civil Rights Act of 1964. Sexual harassment can take many forms:
Determining what kind of behavior constitutes sexual harassment may depend on the circumstances; however, some general descriptions of sexual harassment can be made. A single, or occasional, sexual joke or sexual comment is not sexual harassment unless the comment unequivocally offers workplace advancement in return for sexual favors. Unwanted touching of someone else's body is sexual harassment. Someone who repeatedly tells lewd or obscene jokes that make other employees uncomfortable may be guilty of sexual harassment, especially if the person has been told that he or she makes the workplace uncomfortable. A case for sexual harassment in this example would be weakened if the person claiming harassment participates in the joke-telling.
In addition to laws designed to give victims a civil remedy against sexual harassment, criminal laws provide remedies against the most serious forms of unwanted sexual contact.
People who believe they are victims of sexual harassment should contact the EEOC, the Illinois Department of Human Rights, or the Illinois Human Rights Commission.
If a harasser's behavior crosses the line into assault, battery, or rape, the victim may file criminal charges against the perpetrator. These crimes are discussed in the Criminal Law Chapters.
Anyone fired or forced to leave a job because of sexual harassment may be entitled to receive unemployment insurance benefits while searching for a new job.
Pregnancy Discrimination
Title VII protects pregnant workers and job applicants from discrimination. Employers may not refuse to hire a woman because she is pregnant, fire a woman because she is pregnant, take away benefits or accrued seniority because a woman takes maternity leave, take away benefits from a single woman who has a baby, or fire or refuse to hire a woman who has an abortion.
Generally, an employer must treat pregnant women the same as other workers who cannot perform their jobs for short periods of time. Thus, if an employer allows employees to take leave for a broken leg or short-term illness, the employer must allow pregnant women to take leave under the same terms and conditions. Pregnancy leave also is protected under the Family and Medical Leave Act (discussed below).
Wages and Hours
The federal minimum wage for adult workers age 18 and over is $4.25 per hour. Employers must pay at least the minimum wage, even to employees who earn tips, and employers may not force employees to share their tips with other workers or managers, although employees may do so voluntarily. There are some exceptions to the minimum wage law. For example, workers under 18 years of age must be paid a minimum wage of $3.75 per hour. Generally, employers also must pay hourly employees one-and-a-half times their regular rate for every hour over 40 hours worked in a week.
Certain salaried workers are exempt from minimum wage standards and overtime regulations. To be exempt, an employee must be in an executive, administrative, or professional position and receive at least $250 each week in salary or fee. The employee must supervise at least two other workers, manage an office or a business operation, be a skilled artistic performer or a teacher, or work in a profession requiring advanced knowledge, such as engineering.
Employment laws also regulate child labor. For example, no child under the age of 12 is allowed to work, except for children who are members of farm families and who live and work on farms. Students who are 14 or 15 years old may work only three hours per day during the school year, and only eight hours per day during school vacations. All child workers under the age of 16 must have employment certificates.
Substance Abuse in the Workplace
Under certain circumstances, employers in Illinois may compel employees to pass drug and alcohol tests as a condition of employment. These tests must not be given in a discriminatory way, and if passing a drug or alcohol test is a job requirement, then all employees performing that job must be subject to the testing requirement.
An employer may test an employee for drugs and alcohol only if the test is part of a reasonable policy that seeks to prohibit the use of alcohol or illegal drugs in the workplace. For example, an individual who has undergone treatment for the illegal use of drugs may be tested subsequently under reasonable circumstances to ensure that he or she remains rehabilitated. A reasonable policy also may include testing of all employees in safety-sensitive positions. Federal law governs and allows workplace testing for use of alcohol and illegal use of drugs in the defense, nuclear, and transportation industries.
Parenting, Family, and Medical Leave
The federal government requires certain employers to provide parenting, family, and medical leave to qualified employees. The Family and Medical Leave Act of 1993 (FMLA) allows qualified employees to take up to 12 weeks of unpaid leave to attend to family matters, including health emergencies. Under the Act, a qualified employee may take an unpaid leave following the birth or adoption of a child, after acquiring a foster child, to care for an immediate family member with a serious health condition, or to care for his or her own serious health condition.
Men and women are entitled equally to this leave, but not every worker is qualified. A person must be a full-time government employee, or employee of a company with 50 or more employees who has worked for the company at least 12 months and at least 1,250 hours during the 12 months immediately prior to taking leave.
Under most circumstances, an employee may elect or the employer may require the use of any accrued paid leave for periods of unpaid leave under the FMLA.
When the leave is foreseeable, an employee must provide the employer with at least 30 days' notice of the need for the leave. If the leave is not foreseeable, the notice must be given as soon as it is practical. An employer may require medical certification of a serious health condition from the employee and may require periodic reports during the period of leave of the employee's status and intent to return to work. In addition, an employer may require a fitness for duty certification upon return to work in appropriate situations.
The employee is not entitled to accrue benefits such as vacation time or sick leave during a leave under the FMLA. Any benefits accrued by the employee at the time of the leave, however, stay with the employee. During the leave, the employer must maintain the health benefits the employee was receiving at the time leave begins, at the same level and in the same manner as if the employee had continued to work.
When an employee returns from leave under the FMLA, the employee is entitled to be restored to the same job the employee left when the leave began. If the same job is not available, the employer must place the employee in an equivalent job with equivalent pay, benefits, duties, and responsibilities. Under the Act, employers are prohibited from discriminating against or interfering with employees who take FMLA leaves.
Privacy
Employees' right to privacy at work is a hotly debated issue today as increasing numbers of employers are using searches, surveillance, and eavesdropping in an attempt to better monitor their employees' activities. The law in this area is evolving and is largely unsettled, but it is fair to say that an employee surrenders some of his or her right to privacy at the workplace door. Employers have more of a legal right to monitor employees than governments have to monitor citizens.
When a court must determine whether an employee's right to privacy was violated, it looks at whether the employee's expectation of privacy in a particular situation was reasonable. For example, the expectation of privacy is more reasonable for items in a locked desk drawer than for items left out on a desk. Similarly, it is more reasonable to expect privacy during a personal phone call made on a pay phone than for a work-related call on the employer's phone.
The reasonable expectation standard is not a very strong guarantor of employee privacy. An employer may expand his or her right to search or monitor simply by giving notice to employees. Once an employee receives notice that the employer reserves the right to monitor calls, search offices, read electronic mail, or film the workplace, there is very little reasonable expectation of privacy.
Whistleblowing
It is illegal for an employer to fire a worker in retaliation for reporting a violation of law or for refusing to participate in activity the employee believes to be illegal. If an employee acts in good faith and reports suspected illegal activities to the employer, a governmental agency, or law enforcement officer, the employee cannot be fired or be treated adversely. This workplace right is covered by workers' compensation laws. An employee who is terminated for whistleblowing may sue the employer for retaliatory discharge.
Employee Access to Personnel Records
Illinois law gives employees the right to inspect personnel records. The right to inspection means each employee may review records kept about him or her regarding employment qualifications, promotions, transfers, compensation, discharge, and disciplinary actions. Employees are allowed to obtain the final score of any examinations required for employment. They may not access reference letters or specific portions of employment examinations. Employers are not required to keep personnel records, so the right to inspect records only applies if the records exist.
Illinois Department of Revenue, 101 Jefferson Street West, P.O. Box 19044, Springfield, IL 62794-9044, phone: (217) 785-7100; Illinois Department of Revenue, State of Illinois Center, #7-100, 100 Randolph Street West, Chicago, IL 60601, toll-free: (800) 732-8866.
Internal Revenue Service, 1111 Constitution Avenue NW, Washington, D.C. 20224, (800) 829-3676. National Organization on Disability (NOD), 910 Sixteenth Street NW, #600, Washington, D.C. 20006, phone: (202) 293-5960, TDD: (202) 293-5968.
For information or to order the free pamphlets, Filing a Charge of Discrimination under the Illinois Human Rights Act or Illinois Law Prohibits Sexual Harassment, contact the Illinois Department of Human Rights, 222 College South, #101-A, Springfield, IL 62704, phone: (217) 785-5100, TDD: (217) 785-5125; Illinois Department of Human Rights, 100 Randolph Street West, #10-100, Chicago, IL 60601, phone: (312) 814-6200, TDD: (312) 263-1579.
The Illinois Department of Labor has information on wages, hours, and overtime, and a free poster called Notice to Employers and Employees. Contact the Illinois Department of Labor, State of Illinois Building, 160 LaSalle Street North, #C1300, Chicago, IL 60601-3150, phone: (312) 793-2800 or toll-free: (800) 654-4620; Illinois Department of Labor, One Old State Capitol Plaza West, #300, Springfield, IL 62701; Illinois Department of Labor, 2209 Main Street West, Marion, IL 62959.
For information, unemployment insurance claimant services, forms, or to order the free publications, Summary of Services or Guide to the Illinois Unemployment Insurance Act, contact the Illinois Employment Security Department, 401 State Street South, Sixth Floor, Chicago, IL 60605, phone: (312) 793-5280, TTY: (800) 662-3943.
For public hearing or appeal rights information, contact the Illinois Human Rights Commission, State of Illinois Center, 100 Randolph Street West, #5-100, Chicago, IL 60601, phone: (312) 814-6269; Illinois Human Rights Commission, Stratton Building, #404, Springfield, IL 62706, phone: (217) 785-4350.
The Illinois Industrial Commission, 100 Randolph Street West, Eighth Floor, Room 200, Chicago, IL 60601, phone: (312) 814-6611 has information on workers' compensation rights.
The Illinois Secretary of State, Springfield, IL 62756, phone: (217) 782-5763 has a free pamphlet entitled Sexual Harassment Is Against the Law: An Explanation of the Secretary of State's Office Policy to Prevent Sexual Harassment.
Free publications also may be obtained from the United States Department of Labor, Women's Bureau Region V, 230 Dearborn Street South, #1022, Chicago, IL 60604, phone: (312) 353-6985. These pamphlets include Family and Medical Leave: Know Your Rights; Pregnancy Discrimination: Know Your Rights; and Sexual Harassment: Know Your Rights.
For information about the ADA or to order the free booklets, The Americans with Disabilities Act: Questions and Answers and Your Employment Rights as an Individual with a Disability, contact the United States Equal Employment Opportunity Commission, Chicago District Office, 500 Madison Street West, #2800, Chicago, IL 60661, phone: (312) 353-2713; Region IV Disability and Business Technical Assistance Center, phone: (404) 888-0022, TDD: (404) 888-9098; 1801 L Street NW, Washington, D.C. 20507, phone: (202) 663-4900, TDD: (800) 872-3302.
For information or to order the free pamphlets, Compliance Guide to the Family and Medical Leave Act (June 1993) or Handy Reference Guide to the Fair Labor Standards Act (Oct. 1994), contact the Wage and Hour Division, Employment Standards Administration, United States Department of Labor Regional Administrator, 230 Dearborn Street South, Chicago, IL 60604, phone: (312) 353-7280 or (202) 219-8743 (headquarters), TDD: (800) 326-2577.
The Cook County Commission on Human Relations can be reached at (312) 443-3456.
The Chicago Commission on Human Rights can be reached at (312) 744-4111.
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