From a wage/hour standpoint, it may be beneficial for the employer to define in its employee handbook or personnel manual the employer’s workweek and normal office and production hours.
Note: Employers in Chicago may want to provide a policy delineating the requirements that must be followed to comply with the Chicago Fair Workweek Ordinance that will take effect July 1, 2020. More information on this law can be found in Chapter 10: Wages and hours of your Illinois Human Resources Manual.
If applicable, different shifts also may be described. Setting forth lunch, break, and wash‑up periods also is advisable because it provides employees with notice of the policy and enables supervisors to more easily discipline those who deviate from it. Communicating these expectations to employees also may be helpful in setting essential requirements of the job under the ADA and in avoiding paying unemployment compensation to employees who voluntarily leave their employment because they are unable to work the required schedule.
Employers in Illinois should note, however, that although federal law does not require an employer to provide lunch or rest break periods, employers are required under Illinois law to provide lunch breaks for employees who work in excess of 7.5 hours a day. The meal period must be at least 20 minutes in duration and be offered no later than 5 hours after the employee has started working. Furthermore, federal regulation requires that if such breaks are provided they must be compensated if they are of 20 minutes or less in duration.
Federal law does require employers to offer an unpaid break to new mothers within the first year of giving birth for the purposes of expressing breast milk. The time allowance for these “nursing breaks” are not set forth by federal regulations yet, but may last from 15 to 30 minutes, and may occur two to four times during an eight hour work shift. Employers with less than 50 employees, who would experience “undue hardship” in the course of providing nursing mothers breaks are exempt from this requirement. Undue hardship is determined by weighing the “significant difficulty or expense” of providing breaks against the “size, financial resources, nature, or structure” of the business.
The 2010 Healthcare Reform Act amended the FLSA by requiring that, for a period of one year after a child’s birth, employers must provide a reasonable break time for nursing mothers to express breast milk for her nursing child, each time the employee has need to express the milk. Employers also must provide a “place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” where the employee can express the milk.
Illinois has a similar law called the Nursing Mothers in the Workplace Act, which applies to employers employing five or more employees. Under both state law and federal law, employers are not required to provide break time if doing so would unduly disrupt the employer’s operations, or otherwise cause an undue hardship. Undue hardship is determined by weighing the “significant difficulty or expense” of providing breaks against the “size, financial resources, nature, or structure” of the business.
Employees need not be compensated for break times required under either act, but if break times are normally compensated, then break time used to express milk must be treated in the same way. For uncompensated breaks, employees must be completely relieved from duties or else the break is compensable.
Under the Fair Labor Standards Act (FLSA), employers must keep accurate records of all hours worked by their non‑exempt employees. A timekeeping provision such as the sample policy can help facilitate compliance with these requirements.
While the sample policy also can be used with time clocks, there is no legal requirement that such clocks be used – as opposed to other means – to record non‑exempt work time. The FLSA merely requires that such time be recorded and kept accurately by the employer.
Employers must comply with the requirements of the FLSA concerning overtime premium pay for non-exempt employees. A well written and legally sound overtime policy may assist the employer in complying with this statute. Non-exempt employees are entitled to receive a premium rate of one and one-half times the employee’s regular rate of pay for hours actually worked in excess of 40 per predefined workweek. The provision for double time pay for holiday work in the sample policy is optional. Salaried exempt employees are not entitled to overtime pay under the FLSA.
Under current law, employers are obligated to pay overtime premiums if they knew or had reason to believe that employees were working overtime hours, even if the hours worked were not specifically authorized by the employer. It is therefore recommended that employers include a requirement that overtime hours be authorized in advance. This rule should be enforced consistently and impartially. Then, if an employee works unauthorized overtime, although it may not excuse the employer from paying the employee for that time, the employee will be subject to discipline under the employer’s policy.
Illinois law requires that employers reimburse employees for all necessary expenditures. The term “necessary expenditures” means all reasonable expenditures or losses required of the employee in the discharge of employment duties that were incurred for the primary benefit of the employer. The law expressly excludes expenses that stem from the employee’s own negligence, normal wear or theft. The law requires that expense reimbursement requests be submitted within 30 days after the expense was incurred, but this requirement can be extended by a company’s expense reimbursement policy. Having a written expense reimbursement policy also allows an employer to establish additional terms and conditions for expense reimbursements. Specifically, no reimbursement is required if an employer had an established reimbursement policy and the employee failed to comply.
All private-sector employers in Illinois with more than five employees that do not provide employer-sponsored retirement plans are required to facilitate enrollment of their employees into the Secure Choice Savings Program. Employers that already offer retirement plans to their employees are exempted from this program.
Employees of employers participating in the Secure Choice Savings Program will have automatic after-tax contributions of 5% of gross wages placed into individual Roth IRA accounts.
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