Tips for Illinois Employers

Employment Law Tip for Illinois Employers #4: Disaster Service Leave with Pay

In the light of the recent tornadoes, high winds and hail spawned by the storm system that's killed 31 people in the past week, we thought it would be helpful to inform Illinois employers regarding the little known laws in this state that allow employees disaster service leave with pay.  According to Section 303.175 of the Illinois Administrative Code, any employee, except those employed on a temporary, emergency or per diem status, who is either a certified disaster service volunteer of the American Red Cross, a volunteer for assignment to the Illinois Emergency Management Agency in accordance with the Illinois Emergency Management Agency Act [20 ILCS 3305] or the Emergency Management Assistance Compact Act [45 ILCS 151]  may be granted leave with pay for up to 20 working days in any 12-month period for disasters within Illinois.  The leave may be granted upon request of the American Red Cross and approval of the employee's agency.  Disasters must be disasters designated at a Level III and above or any disaster declared by proclamation of the Governor under Section 7 of the Illinois Emergency Management Agency Act.

If the above does not apply (i.e. if the disaster does not reach the required level or the American Red Cross does not request the leave on behalf of the employee), Illinois law provides protection for those volunteer emergency workers in the event an emergency causes them to be late or miss time for work.

50 ILCS 748/5 (a) states:

No public or private employer may terminate an employee who is a volunteer emergency worker because the employee, when acting as a volunteer emergency worker, is absent from or late to his or her employment in order to respond to an emergency prior to the time the employee is to report to his or her place of employment. (b) An employer may charge, against the employee's regular pay, any time that an employee who is a volunteer emergency worker loses from employment because of the employee's response to an emergency in the course of performing his or her duties as a volunteer emergency worker. (c) In the case of an employee who is a volunteer emergency worker and who loses time from his or her employment in order to respond to an emergency in the course of performing his or her duties as a volunteer emergency worker, the employer has the right to request the employee to provide the employer with a written statement from the supervisor or acting supervisor of the volunteer fire department or governmental entity that the volunteer emergency worker serves stating that the employee responded to an emergency and stating the time and date of the emergency. (d) An employee who is a volunteer emergency worker and who may be absent from or late to his or her employment in order to respond to an emergency in the course of performing his or her duties as a volunteer emergency worker must make a reasonable effort to notify his or her employer that he or she may be absent or late.

Luckily, these laws only come into play sparingly due to the infrequent nature of disasters reaching to the levels described above.  Even so, employers should be aware of the laws and their implications.  Weather and natural disasters are unpredictable and seem to be occurring with much more frequency in the recent years.   Many other states throughout the country have laws similar to those described above.   For more information on these laws or any further employment related matters, please contact Dana Perminas, at (312) 334-3474 or dperminas@messerstrickler.com for more information.

Employment Law Tip for Illinois Employers #1: Paycheck Deductions

Employers may deduct the cost of replacement equipment from an employee’s wages, but they must have the employees provide voluntary written consent to do so.  Il. Admin. Code 300.840 states: An employer may require an employee to pay for required uniforms or necessary equipment, but it cannot deduct the cost from the employee’s paycheck without the employee’s voluntary written consent. 

820 ILCS 115/9 provides further guidance regarding these deductions and states that deductions by employers from wages or final compensation are prohibited unless such deductions are (1) required by law; (2) to the benefit of the employee; (3) in response to a valid wage assignment or wage deduction order; (4) made with the express written consent of the employee, given freely at the time the deduction is made.

In addition, Employers should always be mindful of Federal Law and Regulations that effect employment related matters, specifically the Fair Labor Standards Act (“FLSA”).  Regarding the deduction issue, the FLSA provides that these deductions may be made from an employee’s wage as long as the deduction does not reduce the employee’s wages to below the current minimum wage.  Also, that deduction may never cut into overtime compensation required by the Act.

For example, if an employee who earns the Federal Minimum Wage of $7.25 per hour, the employer may not make any deduction from the employee's wages for the cost of the uniform, or any other required item, nor may the employer require the employee to purchase the item on his/her own.  However, if the employee were paid $7.75 per hour and worked 30 hours in the workweek, the maximum amount the employer could legally deduct from the employee's wages would be $15.00 ($.50 X 30 hours).  Please, note that Illinois Minimum Wage is $8.25.

The employer may prorate deductions for the cost of the required item over a period of paydays provided the prorated deductions do not reduce the employee's wages below the required minimum wage or overtime compensation in any workweek.  Employers may not avoid FLSA minimum wage and overtime requirements by having the employee reimburse the employer in cash for the cost of such items in lieu of deducting the cost from the employee's wages.

Therefore, it would be an employer’s best practices to not only include the specific details regarding the necessary or possible deductions for uniforms, equipment, etc.  in the company’s handbook or written policies, but also to ensure compliance with Illinois state law, and ensure that at the time of the deduction, the employee signs again a voluntary written acknowledgement for that necessary deduction.   Keep in mind the Illinois Department of Labor does not recognize blanket authorization for deductions.  Remember to be specific regarding these deductions.

A helpful tip to put this recommendation into action is to request that an employee fills out an “equipment replacement form”.  That form can include the necessary language to ensure compliance with Illinois and Federal Law to protect the Employer from any potential FLSA and Illinois Wage Claims.

For assistance with the preparation of any corporate handbook, equipment replacement forms, or any further employment related matters, please contact Dana Perminas, at dperminas@messerstrickler.com or by calling Dana at 312-334-3474 for more information.