In general, independent contractors are not covered by anti-discrimination laws. However, many people classified as contractors are misclassified and are really employees. 

For the most part, if your employer controls the time, place and manner of your work, you are an employee. For instance, if your employer can discipline you, tell you how to do your work, have to approve vacation time, and you cannot hire an assistant if you want, these are also signs that you are an employee.

There's a handy form the IRS has, the SS-8, that you can fill out and the IRS will do the work for you of determining whether you are a contract employee or independent contractor.

If you are a contract employee and not an independent contractor, then you are covered by anti-discrimination laws (assuming the other statutory requirements are met). 

Just remember that there may be a question as to who is liable - your actual employer (like a temp agency) or the company for whom you provide services. If you haven't reported it the discrimination to the employer who writes your checks, it is likely a good idea to do so. If the company that you are providing services for controls your work and you enough, they may be a joint employer and also be liable. 

Dollar bill
For the first time since 1957, filing fees for reviewing courts in Illinois increased on January 1, 2015. 

Appellants filing cases in the Supreme and Appellate Courts will pay a filing fee of $50 instead of $25. Appellees will see filing fees increase from $15 to $30.

Under Public Act 98-0324, fees collected by the Clerks of the Supreme and Appellate Courts will be set by Supreme Court Rule, rather than by statute. Further, those fees will now be placed in the “Supreme Court Special Purposes Fund,” which will be used for e-business projects, including upgrading the case management system.

On December 19, 2014, both Jorge L. Alonso and John Robert Blakey received their federal judicial commissions and now are both US District Court Judges for the Northern District of Illinois. Judge Alonso previously served as a Cook County Associate Judge, and Judge Blakey served as the Chief of Special Prosecutions Bureau for the Office of the Cook County State’s Attorney.

We are pleased to announce that Antoinette Choate was named as one of Employment Law’s Rising Stars by Illinois Super Lawyers Magazine 2015.

This is the sixth year that she has been selected.

No more than 2.5 percent of the attorneys in the state are named to the Rising Stars list. Thus, Rising Stars are top up-and-coming attorneys who are no more than 40 years old or who have been practicing for no more than 10 years.

Ban the box: Illinois job applications cannot question criminal history
Illinois has several new employment laws or amendments to existing laws that became effective on January 1, 2105, providing employees substantially more protections.

1.  Employers are now required to reasonably accommodate pregnancies and related medical conditions under an amendment to the Illinois Human Rights Act (IHRA). Further, the anti-retaliation provision of the IHRA now bans retaliation for having requested, having attempted to request, having used, or having attempted to use a reasonable accommodation This relates to any request for reasonable accommodations under the IHRA.

2.  The Illinois Human Rights Act now includes unpaid interns as “employees” to protect them from sexual harassment pursuant to Public Act 098-1037.

3.  Employers are now forbidden from requiring prospective employees to disclose their criminal history on a job application. The "Job Opportunities For Qualified Applicants Act," prohibits employers from inquiring into, considering, or requiring the disclosure of a job applicant's criminal history or background on a job application.

4.  The Illinois Wage Payment and Collection Act now prohibits employers from requiring employees to accept payroll cards (essentially debit cards) to pay wages. An employer using a payroll card to pay an employee’s wages must meet several requirements and is prohibited from imposing certain fees on employees who do accept them, among other things. Public Act 098-0862.

Allyson Bain
The Restroom Access Act, known as Ally’s Law, was passed in Illinois in August 2005. Ally’s Law requires retail establishments that maintain toilet facilities for their employees allow customers to use the facilities if the customer suffers from a medical condition requiring immediate access to a toilet in certain situations. 410 ILCS 39.

More specifically, the request by a customer must be during normal business hours, the restroom must be “reasonably safe” and:

(1)  The customer . . . suffers from an eligible medical condition or utilizes an ostomy device.  410 ILCS 39/10.  Eligible conditions are those that require immediate access to a toilet facility. 410 ILCS 39/15.  There is no special literature needed to prove you have a medical condition.

(2)  Three or more employees of the retail establishment are working at the time the customer request. 410 ILCS 39/10. Notably, a retail establishment is “a place of business open to the general public for the sale of goods or services” but “does not include a filling station or service station, with a structure of 800 square feet or less, that has an employee toilet facility located within that structure.” 410 ILCS 39/5.

(3)  The retail establishment does not normally make a restroom available to the public and a public restroom is not immediately accessible to the customer. 410 ILCS 39/10.

(4)  The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment. 410 ILCS 39/10.

While there is no private right of action for a violation of Ally's Law, a retail establishment or an employee that violates Ally's Law can be fined up to $100. 410 ILCS 39/20.

Illinois was the first state to pass a Restroom Access Act, however, since then, 14 other states have passed similar laws.

Meet Ally

“Ally’s Law” is named for NELA’s very own Allyson Bain. When she was 14-years-old, she suffered a Crohn’s flare-up while shopping at Old Navy. The manager denied her the use of the employee-only restroom, causing her an embarrassing accident. That degrading experience drove Ally and her mother to action.  Ally and her mother reached out to State Representative Kathy Ryg, and eventually Ally’s Law was passed.

Ally is currently attending Northwestern University Law School. She hopes to be a voice for vulnerable communities. This summer, Ally joined the NELA family as an Intern working on legislative advocacy.

Ally continues to raise awareness of inflammatory bowel disease (“IBD”) and is advocating for a federal amendment to the American’s with Disabilities Act to provide comparable protections to the Restroom Access Act. She strives to: (1) educate eligible individuals about the protections available; (2) ensure that retail establishments comply with the law; and (3) emphasize to states without such laws the importance of such protections.

2014 is a significant year for employment law developments – legislative and judicial opinions alike. Employment law practitioners in Illinois should be aware of the following trends.

Causation. One of the most substantial developments this year is the clarification of “but-for” causation. The Supreme Court explained that there could be more than one “but-for” cause. Accordingly, but-for causation does not require a showing that an impermissible motive was the sole cause of the challenged action. Burrage v. United States, No. 12-7515 (January 27, 2014). Expanding on that, the Seventh Circuit held that a “single event can have multiple but-for causes” so an employee’s “FMLA leave request and her sexual harassment complaint could both have been but-for causes of [her employer’s] allegedly  retaliatory conduct.” Malin v. Hospira, Inc., No. 13-2433 (August 7, 2014).

Pregnancy discrimination. The Illinois Human Rights Act was amended to mandate accommodations for employees regardless of the size of the employer. The IHRA amendments further make it illegal for employers to discrimination against employees for using or trying to use accommodations.

FMLA. There has been substantial clarification in the area of FMLA law in Seventh Circuit this year. Of particular note are the following holdings: (1) The Seventh Circuit explained that “caring for” a family member under the FMLA encompasses family trips to Las Vegas for vacation because the employee tended to her mother’s basic medical, hygienic, and nutritional needs during said trip. Ballard v. Chicago Park District, No. 13-1445 (January 28, 2014). (2) The Seventh Circuit found that although the FMLA does not protect individuals who take time off from work to care for grandchildren, it can be protected when that care also constitutes psychological care of the individual’s daughter. Gienapp v. Harbor Crest, No. 14-1053 (June 24, 2014).
An employee suing for FMLA violations does not need to present expert evidence about the qualifying condition. Hansen v. Fincantieri Marine Corp., LLC, No. 13-3391 (August 18, 2014). (3) Estimated leave made by an employee’s doctor does not create an outer limit for the amount of leave needed by that employee. Hansen v. Fincantieri Marine Corp., LLC, No. 13-3391 (August 18, 2014).

Retaliation timing. The Seventh Circuit noted where there was three years between the complaints and retaliatory action that, “the mere passage of time is not legally conclusive proof against retaliation.” Malin v. Hospira, Inc., No. 13-2433 (August 7, 2014).

Seventh Circuit Follows Fifield. While a more nuanced and narrow holding, Judge Holderman specifically enforced Fifield and declined to follow Montel, holding that restrictive covenant agreements lacked adequate consideration when employees are employed for less than two years. Instant Technology, LLC v. DeFazio, No. 12-491 (May 2, 2014).

National Labor Relations Board Seal
On December 11, 2014, the National Labor Relations Board (NLRB) issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes, as it recognized email as one of the primary ways workers communicate, effectively becoming the new "water cooler." 

The decision only applies to employees who have already been given access to the employer’s email system and only during nonworking time. Furthermore, a company can ban employees’ use of email for nonwork related business if they can show that that the ban is necessary to maintain production or discipline.

The decision overturns the 2007 Register Guard decision, which allowed employers to prohibit use of company email for non-work related purposes.

However, the decision did not clarify whether employees have the right to use employer email systems to communicate directly with unions. 

Read the order here.

Seal of the Supreme Court of the United States
The United States Supreme Court held that the time employees spend waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act ("FLSA"). Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (December 9, 2014).

Plaintiffs were employed by Integrity, a temporary staffing firm. They were assigned to work at a warehouse maintained by Amazon.com where they prepared packages for shipment. All employees had to undergo security screening upon leaving the warehouse each day to reduce theft from the warehouses.

The Plaintiffs filed a lawsuit alleging that the time spent waiting to proceed through the security screenings was compensable under the FLSA. The District Court dismissed plaintiffs' complaint. The Ninth Circuit reversed, holding that when activities are "necessary to employees' primary work" and "done for [the employer]'s benefit," they are compensable as "integral and indispensable" activities.

The Supreme Court reversed the Ninth Circuit, relying on the Portal-to-Portal Act. The Act exempts employers from having to pay workers for the time they spend on activities that take place before and after the workday, for instance, the time it takes an employee to walk from his or her car to the time clock. The Supreme Court held that time spent in connection with the security screening was a "noncompensable postliminary activit[y]" under the Act, as they "were not the 'principal . . . activities which [the] employee is employed to perform.'" The Court also found the security screenings were not "integral and indispensable" to the employees' work.

Read the case here.

In early December, the Illinois Senate voted 46-4 to prohibit recording private conversations without the consent of everyone involved. The House of Representatives also voted in favor of the new eavesdropping bill.  The legislation is now before Gov. Pat Quinn for signature before it becomes law but it is unclear whether he will sign it.

The legislation is intended to replace the’ previous law, which, at least in part, was declared unconstitutional by the Illinois Supreme Court last spring.

The previous law, forbade any recording of anyone without consent from all parties involved. The new legislation distinguishes between “private” conversations and those that “cannot be deemed private,” such as a loud argument on the street. The recording of private conversations, without everyone's consent or a warrant, remains illegal. 

Read the proposed bill here.