Posted on August 16th, 2010 by Tim Eavenson | No Comments »
Filed under: HR Issues | 
Illinois seems to be on an employee-protection binge.
In addition to the recently-signed beef up of the Wage Payment & Collection Act, Governor Pat Quinn has signed a new law that prohibits most employers from using credit checks during the hiring process. Specifically, the Employee Credit Privacy Act (HB 4658) bars employers from basing employment decisions on an employee or candidate’s credit. The Act also prohibits employers from inquiring about an employee’s credit or obtaining a copy of their credit report.
The theory behind this law – some version of which is winding through a great number of state legislatures right now – is that laid-off workers and unemployed college grads have had their credit adversely affected by the downturn, but bad credit doesn’t mean they’re bad employees. To deny them employment would put them in a feedback loop: they can’t get a job because of their credit, and they can’t repair their credit because they can’t get a job.
Of course, this doesn’t mean there aren’t jobs where pre-employment credit checks are very good things, and thankfully, the law accounts for those circumstances. Insurance companies, banks, and law enforcement and other public-sector employers are exempt. The law also allows employers outside of those industries to use credit checks where the employee has access to personal financial information, or - in certain circumstances - access to company funds or trade secrets.
The law has broad support in the public. Arguments for it focus on the fact that, for most low- to mid-level jobs, an employee’s credit history just isn’t closely related enough to the work they will do, or their work ethic for that matter. It’s common knowledge that a lot of hard working people are not always the best with their personal affairs.
I know there’s been a lot of debate over this law, though public opinion seems to be in favor post-downturn. I’d be interested to know what you think. Leave your take in the comments.
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Posted on August 2nd, 2010 by Tim Eavenson | 1 Comment »
Filed under: Wage & Hour |
Illinois Governor Pat Quinn has signed changes to the state’s Wage Payment and Collections Act that make repeat wage theft a felony, which makes employers eligible for jail time.
Under the beefed-up IWPCA, employers that violate the wage laws will have to pay employees back with interest, and a $250 fine. If they’re caught more than once in a two-year period, they will be charged with a felony, and could face up to three years in jail.
While I’m not holding my breath waiting for the first imprisonment under the new law, there is another provision that could make for some real change: beginning next year, the Illinois Department of Labor will have the authority to adjudicate wage claims under $3,000, instead of issuing demands to employers that inevitably get ignored and then passing the case onto the Attorney General to prosecute.
Besides the growing pains that will inevitably come with this new authority, I am interested in what affect this will have on wage-and-hour lawsuits, which have been steamrolling through Illinois courts for years. My understanding is that the courts have allowed people to file private lawsuits for Wage Act violations without going through the DOL because the department couldn’t enforce its findings. Now that the DOL has adjudication powers, it will be interesting to see if lawsuits get thrown out for failure to exhaust administrative remedies first.
The DOL enforcement is supposed to be paid for through interest collected by the state for certain violations.
HT – WBEZ
~~ Footnotes ~~
Posted on July 6th, 2010 by Tim Eavenson | No Comments »
Filed under: Wage & Hour |
In a matter of first impression here in Illinois, the First District Court of Appeals has held that settlements and releases of wage-and-hour claims, obtained from individual employees while a petition for class certification is pending, are void as a matter of law (decision here).
The Plaintiff had sought class certification in a wage-and-hour suit against her employer, Giordano’s Enterprises, over a $0.25-per-hour deduction used to cover employee meals. The Plaintiff wanted two separate classes certified – employees who were paid below minimum wage after the deduction, and employees who still received more than minimum wage after the deduction. The Defendant asked the court for additional time to respond, claiming they wanted to negotiate settlement.
During the court’s extension, the Defendant executed some 350 settlement and release agreements with individual employees. The settlements released the company from the wage claims in exchange for $10. When the Plaintiff learned of the releases, she moved the court to enjoin the Defendant from executing any additional settlements, and to void the already-obtained agreements as against public policy. The court granted the injunction, and certified the question of the settlements’ validity for interlocutory appeal.
On appeal, the court noted that the Wage Payment Act itself states that payment of minimum wage is a matter of public policy, and that any contract that results in less-than-minimum wages is void. The Act also requires employers to pay employees all wages not in dispute, and that acceptance of a paycheck can’t be tied to release of wage claims. Thus, the Act itself prohibited the settlements signed by any member of the putative “below-minimum” class.
As to the other class – those who still received more than minimum wage after the $0.25 deduction – the court looked to Federal courts’ interpretation of the FLSA for guidance. Though there are exceptions, the court noted a steady line of cases prohibiting private settlements of wage claims. The reasoning was transferrable to Illinois – the legislature’s determination of a public right to minimum wage payment meant that the right cannot be waived.
Finally, and most importantly, the court held that all the settlements were void because the Plaintiff had already petitioned for class certification. Illinois courts have long held that, where a class hasn’t been certified yet, the Defendant can execute settlements with individuals who would eventually be members of the class. However, no court in the state had ever dealt with settlements executed while a petition for class certification was pending. The court of appeals held that a trial court has a duty to protect the interests of a putative class, and the legitimacy of the judicial process, and that this duty was affected by the Defendant’s attempts to settle with members of the class. As a result, the court of appeals held that any releases signed by members of a putative class while a petition for certification is pending are void as a matter of law.
It will be interesting to see how the Defendant’s specific actions in this case – asking the trial court for an extension so it could “negotiate settlement”, not notifying either the Plaintiff or the court of its intentions, offering a blanket sum of $10 rather than negotiating individual claims, etc. – affect the trajectory of this decision’s precedent. Future courts could limit the holding to circumstances where the defendant tried to deceptively execute releases, or it could stand on the holding as it reads – that any release executed while a motion for class certification is pending is outright void.
Either way, for now the message is clear: In Illinois, everything changes when that petition to certify is filed.
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