While employers are not legally obligated to provide their employees with an internal grievance procedure, many choose to do so in an effort to satisfy employee complaints, reduce the probability of union involvement, and decrease potential liability that may arise from harassment lawsuits.
Ideally, employers should ensure new-hires are aware of the procedure for making complaints and to whom those complaints should be directed. Additionally, employers should clearly state that employees will not be retaliated against for making complaints. Employers should instruct managers and supervisors to get a written statement from the employee and any other employees that are approached as a result of the employee’s complaint.
The problem-solving procedure [FORM] is designed for employers who are relatively free from concerns about unionization, while the fair treatment procedure [FORM], which reads more like a typical collective bargaining agreement grievance procedure, is designed for employers with a greater expectation of union organizational activities.
Interns have become a staple in many occupations, but employers should not be fooled into believing hiring interns is free of risk because of the ubiquity of internships. If an intern is not obtaining academic credit for the internship, an employer must carefully evaluate whether the internship is exempt from wage and hour obligations. Moreover, even if an intern is receiving academic credit, that is not a guarantee that the position is exempt. Consequently, employers should seek counsel to navigate this area because employers who improperly classify interns can run into problems with the Department of Labor (DOL) under the Fair Labor Standards Act (FLSA), or the Illinois Department of Employment Security under the Illinois Unemployment Insurance Act.
Many employers believe that hiring an intern means that the intern does not have to be paid. However, if an employer is deriving an immediate benefit from the intern’s efforts, or if the internship is not primarily for the benefit of the intern, then the FLSA requires employers to pay interns minimum wage and overtime. The threshold issue is whether the internship can be viewed as an extension of the intern's education experience. Typically, the DOL will only view the internship as an "extension of the intern's education experience" if the the intern is enrolled in school, the school exercises oversight over the internship, and offers academic credit for the internship. Technically, the DOL does not require that the intern receive academic credit to be exempt, but it is much harder to show exempt status without academic credit.
Paying interns creates another challenge for employers: reporting the intern’s wages to the Internal Revenue Service (IRS). Most employers want to hire interns to give young adults an opportunity to obtain some real life experience in a specific time period-- three months, six months, or a year. Because of the limited time period, most employers do not want to go through the hassle the accompanies classifying an intern as an employee. If it can be determined that an employer is deriving a benefit from an intern and, therefore must pay the intern, the employer will typically have to classify the paid intern as an employee for tax purposes. While it may be tempting to classify the paid intern as a 1099 independent contractor, this decision is likely violating the Illinois Unemployment Insurance Act. An employer who misclassifies employees as independent contractors is liable for unpaid unemployment insurance payments, interest, and hefty penalties. Again, employers should speak to counsel to determine how to properly classify an intern for wage and hour purposes.
In the past few years, Illinois has significantly increased the amount of audits the Department of Employment Security conducts of Illinois businesses. Employers will improve their chances of avoiding an audit if the employer sticks to the general rule that an intern is most likely not an intern unless he or she is receiving academic credit for the internship. While other wage and hour enforcement agencies do not apply such a bright line rule, employers should take the Illinois Department of Employment Security's position into consideration when receiving classification issues.
While an employee suggestion policy is not legally mandated, many employers maintain such policies as a means of boosting employee morale and soliciting valuable employee input. Such a policy also may be a good hedge against a union organizing campaign because employees often seek unions when they perceive that they have no meaningful input concerning their working conditions or that their views are not regarded by their employer. Obviously, employee suggestions must conspicuously be taken seriously to accomplish this objective.
In Illinois, employers are required to permit employees to inspect their personnel documents upon an employee’s request under the Personnel Record Review Act. The documents subject to inspection are those that have been, or might be, used in determining the employee's qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action. The employer has to permit two inspections per year. The employer has to provide an inspection opportunity within seven days of the employee's request. The employer can require that the employee make the request in writing, but has to provide the employee with a request form.
In addition, as stated in the sample policy, the federal Occupational Safety and Health Act (OSHA) entitles employees who are exposed to toxic substances or harmful physical agents access to certain medical and related records. Beyond compliance with this requirement, many employers, in an attempt to maintain positive employee relations, choose to allow employees to inspect all of their records in a reasonable manner. The sample policy provides a good example of a means to allow employees such access to their employment files.
From a legal standpoint, the employee recourse provision may be helpful in defending a claim of an employee who reviewed his or her personnel file without formally challenging any of its contents. This provision may be used to argue that the employee had no disagreement with any of the negative information contained in his or her file when that information forms the basis for the adverse employment decision over which the employee’s legal claim is asserted.
Employers must be extremely cautious when making references to prospective employers of their current or former employees. It is critical that only one person in the company be designated to provide such references. Otherwise, the employer risks releasing references that might render the company liable for defamation or other causes of action. For this reason, all employees should be informed of the designated individual authorized to furnish employee references.
Because of the legal risks in providing inaccurate or misleading information about an employee or former employee, the employer should disclose only truthful, job‑related information concerning an employee.
Thus, it is clearly safest from a legal standpoint to limit all references to an employee’s vital statistics (name, position, and dates of employment). This approach may not be desirable at a practical level, however, as employers who provide such limited references are likely to receive similar treatment from other employers. To balance these concerns, the employer may wish to obtain a release from the former employee before supplying additional truthful and objective information regarding the latter’s employment with the company.
Because employing relatives of current employees often leads to morale and work-relationship problems in the workplace, many employers have anti‑nepotism policies like the sample forbidding such employment. Employers choosing to adopt such a policy should state that cases concerning the employment of relatives will be dealt with on a case-by-case basis to ensure maximum flexibility in handling such situations. The policy also should contain an explanation of why the employer discourages the employment of relatives and should describe the circumstances and types of relationships covered by the policy. The employer also might wish to include a list of circumstances and relationships that would be permitted by the policy.
The sample policy’s approach toward resolving problems that develop under the policy is preferred to one that always results in the lower-level employee being transferred or terminated. Such an approach may have an adverse impact on female employees. An anti‑nepotism policy also may be helpful in facilitating workplace diversity in predominantly non‑minority workforces.
In Illinois, no person is allowed to smoke in a public place, or in any place of employment, or within 15 feet of any entrance to a public place or place of employment. In addition, employers in Illinois are required to place “No Smoking” signs or “No Smoking” symbols at all entrances to places of employment, and in conspicuous places within the place of employment. Furthermore, the Indoor Clean Air Act prohibits smoking in all enclosed public places (including workplaces) and public meetings, except in designated smoking areas. In addition, the ADA and other federal statutes might, in limited situations, provide employees or customers with a cause of action against an employer who allows smoking in the workplace if the smoking causes a proven harm to others. In light of these broadening legal and practical concerns, it is becoming increasingly desirable for employers to notify all employees of the employer’s No Smoking policy, and to consistently enforce the No Smoking policy.
Employers should strive to maintain a healthy and safe environment for their employees and, accordingly, many employers are implementing non-smoking policies in the workplace – either prohibiting it entirely or limiting it to certain designated areas.
Many employers have a specific dress code that employees are required to follow. Failure to abide by the policy may subject the employee to the employer’s discipline policy. Employers also may, if they choose, charge employees a reasonable cost to purchase company-provided uniforms. It is obviously helpful to include such dress code requirements in the employer’s written policies.
The sample policy provided is fairly general, but employers may wish to require or prohibit specific attire. When drafting a dress code policy, employers should consider the work environment and culture of the business. If employees frequently work with clients, employers may wish to institute a "business attire" or "business casual" dress code. If employees work with heavy machinery, employers should ensure employees do not wear clothing that restricts or interferes with the operation of the machinery. Whatever the case may be, it is imperative to ensure that the policy is uniformly enforced and gender-neutral. Where differences between genders is necessary, an employer should be prepared to establish the business need behind the distinction.
A telephone usage policy addresses how employees should interact with customers on the telephone and stresses customer satisfaction. The sample policy might be better suited to office personnel in a retail sales business than production workers in a manufacturing concern. Any such policy should be drafted with attention to the particular employer’s needs and facilities.
In certain work environments, the safety of the employer’s premises and property can be secured only through periodic searches of company property used by employees or employee property brought upon the company’s premises. In those work settings, it is desirable from a legal standpoint to have a written inspection policy distributed to all employees.
The company’s policy should identify company-owned property available for employee use subject to inspection. Employees should be placed on notice that the employer’s property remains the property of the employer at all times even if the employee maintains possession of it. As such, the property is subject to inspection by the employer at any time. Such a policy will result in a lower expectation of privacy on the part of employees and will prevent them from establishing that the company has committed an invasion of privacy in searching the property.
Employers also may reserve the right to inspect employees’ personal property upon reasonable suspicion. It is critical that employees have advance notice of this employer right and that the employer exercise it with due care and discretion. The written policy should define the employees’ property that is subject to inspection. Reasonable suspicion must be based upon specific objective facts and rational inferences drawn from those facts.