Tag: employer

An Employer Can Be Liable for Accessing an Employee’s Personal Email Even if the Employee Engaged in Misconduct

Over the last several years, communication via email and text has become commonplace in the workplace. Oftentimes, employees use one device for both personal and work-related communication regardless of whether that device is employee-owned or employer-provided. There is no doubt that employers may have legitimate business reasons for monitoring employee communications. For example, an employee may leave the company and the employer is concerned that she has taken confidential information or illegally solicited clients. Employers feel entitled to review data stored on employer-provided, particularly where employees are instructed that the company owns the devices and has the right to monitor the data.  As a general rule, the law supports employers here.  An employer’s zeal to snoop, however, may subject it to both civil and criminal penalties under both federal and state statutes.

The Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA) both govern an employer’s ability to review electronic communications. The ECPA prohibits the interception of electronic communications, and the term “interception” as used in the ECPA has been interpreted narrowly. The SCA makes it illegal to “access without authorization a facility through which electronic communication service is provided,” making it illegal to obtain access to certain communications in electronic storage. With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail or Hotmail, the most frequent scenario is where the former employer is able to access the former employee’s web-based email account because the employee saved his username and password on a device provided by the employer. In these cases, courts have typically sided with the former employee and have been reluctant to punish the former employee for failing to take appropriate steps to secure their own personal information and allegedly private communications.  The former employee’s own negligence in securing personal data is not a defense for the employer.

Bottom line – an employer should seek advice before accessing an employee’s personal email account without authorization even though it has the ability to do so.

For more information on this topic please contact:

Howard Teplinsky at:

312-368-0100 or hteplinsky@lgattorneys.com.

Cook County Raises Minimum Wage

On October 26, 2016, the Cook County Board passed an ordinance to gradually increase the minimum wage to $13.00 per hour by 2020. The Cook County Board’s action follows the lead of the City of Chicago which in 2014 passed an ordinance to gradually increase the minimum wage in Chicago to $13.00 per hour by 2019.

The first increase is effective July 1, 2017, raising the minimum wage from $8.25 to $10.00 per hour. The minimum wage will increase again on July 1, 2018, to $11.00 per hour; on July 1, 2019, to $12.00 per hour; and on July 1, 2020, to $13 per hour. The ordinance applies to any business or individual that employs at least one employee who performs at least two hours of work in any two-week period while physically present within the geographical boundaries of Cook County, with limited exceptions.

The ordinance also requires Cook County employers to provide notice to their employees regarding their rights under the ordinance, including: (i) conspicuously posting a notice at each facility within Cook County; and (ii) providing a written notice to employees with their first paycheck issued after July 1, 2017.

Employers are subject to significant penalties for non-compliance with the ordinance, including, but not limited to, fines in the amount of $500 to $1,000 per each day of non-compliance. The ordinance also establishes a private cause of action for employees who may recover damages against an employer in an amount equal to three times the amount of any underpayment, in addition to the employee’s attorneys’ fees and costs. An employer’s failure to comply with the ordinance may also violate other laws including the Illinois Wage Payment and Collection Act, Illinois Minimum Wage Law, and Federal Fair Labor Standards Act, which also provide for an employee’s recovery of damages, interest and attorneys’ fees.

If you have any questions regarding the minimum wage applicable to your business or your obligations under the new Cook County Ordinance, please contact:

Kristen E. O’Neill at:

koneill@lgattorneys.com or 312-368-0100.

Illinois Freedom to Work Act Prohibiting Non-Compete Restrictions for “Low-Wage Employees” is Signed in to Law

On August 19, 2016, Illinois Governor Bruce Rauner signed into law the Illinois Freedom to Work Act. The new law, which is effective January 1, 2017, prohibits employers from entering into covenants not to compete with low-wage employees and provides that any agreement entered into in violation of the Act is illegal and void.

Under the Act, a “low-wage employee” is any employee who earns the greater of: (1) the hourly rate equal to the minimum wage required by the applicable Federal, State, or local minimum wage law; or (2) $13.00 per hour.

Covenants not to compete prohibited by the Act include agreements that restrict a low-wage employee from performing:

  1. work for another employer for a specified period of time;
  2. work in a specified geographical area; or
  3. work for another employer that is similar to such low-wage employee’s work for the employer with which the employee entered into the agreement.

The Act appears to apply only to covenants not to compete and does not expressly apply to non-solicitation agreements prohibiting low-wage employees from soliciting the employer’s customers or employees. The Act also does not prohibit non-disclosure or confidentiality agreements to protect an employer’s confidential information.

If you have any questions regarding the Illinois Freedom to Work Act or would like to discuss the preparation of employment agreements for your business, please contact:

Kristen E. O’Neill at:

koneill@lgattorneys.com or 312-368-0100.

REMINDER: New Illinois Law Limits an Employer’s Ability to Inquire Into Job Applicant’s Criminal History

The Illinois “Job Opportunities For Qualified Applicants Act”, which took effect on January 1, 2015, prohibits employers from inquiring about or into, considering, or requiring disclosure of the criminal record or criminal history of an applicant on a job application. In passing the Act, the Illinois legislature found that “it is in the public interest to do more to give Illinois employers access to the broadest pool of qualified applicants possible, protect the civil rights of those seeking employment, and ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly.” The Act applies to all employers with 15 or more employees. The Act specifically excludes three types of employers: (i) employers required by federal or state law to exclude applicants with certain criminal convictions; (ii) employers that require a standard fidelity or equivalent bond where one or more specific criminal convictions would disqualify the applicant; and (iii) employers that employ individuals licensed under the Emergency Medical Services (EMS) Systems Act. An employer may inquire into an applicant’s criminal background only after an applicant has been deemed qualified for the position and notified that he has been selected for an interview, or, if there is not an interview, only after a conditional offer of employment is made to the applicant. Employers that violate the Act are subject to civil penalties imposed by the Illinois Department of Labor. The Act does not, however, create a private cause of action for aggrieved job applicants.

To discuss any questions you may have about the effect of the Job Opportunities for Qualified Applicant Act on your business or how you can revise your employment policies to comply with the Act, please contact:

Kristen E. O’Neill at:

(312) 368-0100 or koneill@lgattorneys.com.

New Illinois Law Provides Greater Protections for Pregnant Employees

In August 2014, Governor Pat Quinn signed into law Public Act 98-1050, which is commonly referred to as the “Pregnancy Workers Fairness Act” (the “Act”). The Act, which becomes effective January 1, 2015, provides greater protections for pregnant workers, requiring all Illinois employers to provide reasonable accommodations to any employee or job applicant for pregnancy and child-birth related conditions, unless doing so would impose an undue hardship on the employer.

The Act amends the Illinois Human Rights Act to include pregnancy as a protected class. “Pregnancy” is defined as “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.” Employers are now required to provide pregnant employees with “reasonable accommodations”—the same type of accommodations employers are already required to provide to workers with temporary disabilities. Reasonable accommodations may include light duty, assistance with manual labor, and additional or extended bathroom breaks.  An employer may only refuse a requested accommodation if the employer can demonstrate that the accommodation presents an undue hardship on its ordinary business operations. The Act also prohibits discrimination in the hiring and employment of pregnant workers and those affected by a medical or common condition related to pregnancy or childbirth.

Employers must also post a notice regarding employees’ rights under the Act in a conspicuous location or include this information in the employer’s employee handbook.

To discuss any questions you may have about the effect of this new law on your business, please contact:

Kristen E. O’Neill at:

(312) 368-0100 / koneill@lgattorneys.com

Attention Employers and Employment Agencies: Criminal Records and Criminal Histories of Prospective Employees Off-Limits at Application Stage!

The Job Opportunities for Qualified Applicants Act (the “Act”), a new Illinois statute, will become effective January 1, 2015. The Act restricts employers and employment agencies from inquiring about or requiring the disclosure of an employment applicant’s criminal record or criminal history at the application stage, i.e., until the employer or employment agency has determined the applicant is qualified for the position and notified the applicant that he or she has been selected for an interview or, if there is not an interview, until after a conditional offer of employment is made to the applicant.

The Act defines an employer as any person or private entity that has 15 or more employees in the current or preceding year and employment agencies as any person or entity regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer.

The prohibition on inquiring into an applicant’s criminal record or criminal history at the application stage does not apply for positions where: (i) employers are required to exclude applicants with certain criminal convictions from employment due to federal or state law; (ii) a standard fidelity bond or an equivalent bond is required and an applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining a bond; or (iii) employers employ individuals licensed under the Emergency Medical Services Systems Act.

Employers and employment agencies are allowed to notify applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or state law, or the employer’s policy. Therefore, if an employer has a company policy which would disqualify an applicant from being hired based on specific offenses, the employer may notify applicants in writing of that fact.

Civil penalties that apply to employers or employment agencies that violate the Act range from a warning for the first violation to a civil penalty of up to $1,500 for every 30 days that passes without the employer’s or employment agency’s compliance with the Act.

In addition to the new rules under the Act, the ban against employers and employment agencies inquiring into or using an arrest record or expunged criminal history as a basis to refuse to hire remains in effect.

To review your business’ employment application and procedures or to review your business’ policies regarding specific offenses which may disqualify an applicant, or develop a notice letter to potential employees, please contact:

Morris R. Saunders at:

(312) 368-0100 / msaunders@lgattorneys.com

or

Mitchell S. Chaban at:

(312) 368-0100 / mchaban@lgattorneys.com

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