Latest Extension of COBRA Premium Subsidy

The 65% COBRA premium subsidy has recently been extended.  Under the “Temporary Extensions Act of 2010,” the subsidy will now apply to involuntary terminations occurring on or before March 31, 2010 (rather than February 28, 2010).

Under the new extension, certain individuals who experienced a reduction in work hours before the Extension Act’s March 2 enactment date, and who are involuntarily terminated on or after that date, may now qualify for the subsidy.

If you have had your hours of work reduced between September 1, 2009 and March 2, 2010 and then were terminated on or after March 2, 2010 you may qualify for the 65% COBRA reduction.  If you have questions concerning whether you qualify for the COBRA premium reduction, please contact Jensen Law Office, LLC to further discuss your situation.

Cobra Benefits and Premium Reduction

Under Illinois and Federal Law, when an employee who has health insurance through their employer loses their insurance through a reduction in hours or a loss of job, they, and their spouse and children, may be eligible for up to a 15 month continuation of benefits under COBRA or similar state laws. Normally under COBRA, the former employee is responsible for the entire COBRA premium, plus potentially an administrative fee. 

Under the Federal Stimulus package (ARRA) and its extension signed on December 11, 2009, individuals who lose group health coverage because of an involuntary termination between September 1, 2008, and February 28, 2010, may be eligible for a 65% reduction of their COBRA premiums for up to 15 months.  The state version, called “Mini-COBRA”, is applicable to small employers (under 20 employees) who offer insurance, and offers the same 65% reduction for up to 12 months. This means that instead of the job-less employee paying the full amount, they would only pay 35% of the COBRA premium. 

The stimulus package also provided a chance for some individuals to opt in to COBRA coverage even after their initial coverage window expired.  Some individuals who were already terminated after September 1, 2008 but before February 16, 2009 were to receive a notice of the ARRA provided premium reduction and a second chance to opt-in to coverage.  Individuals should have received that notice by April 18, 2009, and had 60 days to elect COBRA coverage, despite missing their first COBRA coverage opportunity. 

Under COBRA, there is a limited amount of time to elect coverage, with some very strict enforcement of deadlines, so act quickly. If you are having problems with your employer or your insurer regarding your COBRA benefits, or were recently terminated and need to discuss COBRA benefits, please contact Jensen Law Office, LLC to further discuss your situation.

The Illinois Victim Economic Safety and Security Act (VESSA)

Illinois provides protection for employees that are the victims, or have family members that are victims, of domestic or sexual violence under the Illinois Victim Economic Safety and Security Act 820 ILCS 180/1 et seq (VESSA).  Affected employees are allowed to take unpaid leave and request accommodations to secure their safety.  Under the law, family members include a spouse, parent, child, or resident of such household as well as “any person related by blood or by present or prior marriage and any other person that shares a relationship through a son or daughter.”

Under VESSA, affected Full-time or Part-time employees working at companies with at least 15 employees within the past year are entitled to between 8 and 12 weeks of unpaid leave within a 12 month period, (depending on the size of the employer). Leave can be taken for a variety of reasons but must be related to the domestic or sexual violence, including seeing a lawyer, going to court, seeing a doctor or counselor, or taking measures to secure your future safety.  To request leave, you must tell your employer that you need time off due to domestic or sexual violence.

If possible, you are to tell your employer 48 hours prior to the time you need to take off.  Your employer can ask for proof, including a sworn statement or any other type of evidence (court order, letter from doctor, or other proof). This information is to be kept confidential unless you permit your employer to share it, or if required by law.

While you are on leave, your employer is required to maintain your health insurance benefit and is required to hold your job (or a very similar job) for you, with the same seniority and benefits. While your employer cannot terminate you for exercising rights under VESSA like taking leave, they can still terminate you for unrelated job performance problems.

Besides taking leave, your employer is required to grant you reasonable accommodations to help you stay safe at work, unless it would be an undue hardship on the employer.  Depending on the situation, examples include things like changing your phone extension to prevent harassing calls, or changing your work location or hours.

Your employer cannot harass, discriminate or retaliate against you as a victim of domestic or sexual violence for taking leave or for requesting an accommodation to help you stay safe at work.  Employers are required to post a notice of your rights under VESSA.

If you are having difficulty with your employer because you, or your family member, are a victim of domestic or sexual violence, please contact Jensen Law Office, LLC to further discuss your situation.

Employer’s Payment Obligations to Separated Employees

When an employee is terminated, or when an employee quits, they are legally required to be paid certain wages, vacation, and bonuses earned according to the Illinois Wage Payment and Collection Act.  The Wage Payment Collection Act requires prompt payment at the time of termination, or at the latest by the next regularly scheduled paycheck, of all earned wages, salary, the monetary equivalent of any earned vacation and holiday pay, any earned commissions, earned bonuses, and any other compensation owed to the terminated employee.  The failure to pay these amounts can be recovered by the employee, and employers who fail to pay may be required to pay the employee’s attorney fees.

Please contact Jensen Law Office, LLC to answer any questions regarding what is required to be paid at separation, or to discuss your situation.

Non-Compete Agreements

Non-Compete Agreements, or Restrictive Covenants, can prevent employees who leave their job from taking a different job with a competing company, from working within a certain geographic area, or from working in a given industry.  Some employers will require their employees to sign these types of agreements to protect their investment in those employees, or to protect the employer’s relationship with their customers.  These agreements can be found in some of the forms that you fill out when you are hired, in the Company Handbook, or may be presented for signature along with a promotion.  Typically, non-compete agreements are not favored by courts, and are analyzed in a variety of ways to determine if they can be enforced.  However, a recent Fourth District Appellate Court decision could make many more of these agreements enforceable and would have extensive ramifications on those employees that have signed an agreement not to compete.

Traditionally, any non-compete agreement has been analyzed under a two tiered approach, by looking first at whether the agreement is reasonable in its terms and secondly whether it serves a “legitimate business interest”.

This last September, in Sunbelt Rentals, Inc. v Ehlers, the Fourth District held that the Illinois Supreme Court has never adopted the “legitimate business interest” prong, and therefore the Courts should only look to the terms of the agreement to determine if the agreement is reasonable and should be upheld.  In ignoring the body of case law from other Illinois Appellate Courts, the Fourth District examined the Illinois Supreme Court opinions regarding non-compete agreements and found that they have never discussed the “legitimate business interest” test.  By ignoring this test, the Appellate Court proclaimed that so long as the terms of a contract are reasonable and do not violate the law, the Courts should not interfere with two parties right to enter into such contracts.

Since the case settled shortly after the decision, it has not been appealed.  Only time will tell how it will affect other Courts in analyzing non-compete agreements and the “legitimate business test” in the future.  If you are asked to sign a non-compete agreement, or if you are an employee looking to determine if an agreement that you signed with your employer can prevent you from finding another job in your industry, contact Jensen Law Office, LLC to meet with an attorney to discuss the circumstances surrounding your non-compete agreement.

Recent Changes to the Illinois Human Rights Act

There are two recent changes to the Illinois Human Rights Act that expand protections for employees.  Effective January 1, 2010, individuals who have obtained an order of protection will be protected from unlawful discrimination and retaliation in Illinois.  It will become illegal for most employers to take a negative job action against an employee who has an order of protection in place, where there is no legitimate business reason for the negative job action.

Coupled with the recent changes to a law protecting victims of domestic abuse – the Victim’s Economic Safety and Security Act (VESSA) – this provision will provide greater protection to those employees who have received an order of protection.  If you think that you are being discriminated against because of an issued order of protection, please contact Jensen Law Office, LLC to further discuss your situation.

Secondly, the Governor will likely sign HB0059, a modification to the Illinois Human Rights Act providing several procedural changes.  These changes are largely minor, but one significant change provides that any dismissal of a charge by the Illinois Department of Human Rights, whether due to a lack of substantial evidence or even for jurisdictional issues, can now be pursued in Illinois Circuit Court or in front of the Human Rights Commission, and that action must be filed within 90 days after the receipt of the notice from the Director of the Department of Human Rights.

Governor Quinn is expected to sign HB0059 in the very near future and it will become effective immediately.

Navigating through the Illinois Department of Human Rights can be tricky and cumbersome.  The experienced attorneys at Jensen Law Office, LLC can assist you in navigating those waters. Contact Jensen Law Office, LLC today to discuss your situation in further detail.

Genetic Information Non-Discrimination Act

Passed as an Act to “prohibit discrimination on the basis of genetic information with respect to health insurance and employment,” the Genetic Information Nondiscrimination Act of 2008 (GINA) changes health insurance laws and protects against employment discrimination.  As it relates to employment, “genetic information” includes an individual’s genetic tests, genetic tests of family members or the manifestation of a disease or disorder in family members of individuals.  42 USC §2000ff.  Effective November 21, 2009, it is an unlawful employment practice for an employer to discriminate in the terms and conditions of employment based on genetic information.  42 USC §2000ff-1. It is illegal to retaliate against someone that opposes a practice that is unlawful under GINA or makes a charge under GINA. 42 USC §2000ff-6(f).  It is also illegal for an employer or union to request, require or purchase genetic information with respect to an employee or family member with a few exceptions.   42 USC §2000ff-1 and 42 USC §2000ff-2. Exceptions include the “water cooler acquisition” exception, where the employer inadvertently hears or requests genetic information, or the “commercially available” exception, where an employer purchases documents that are commercially and publicly available that includes family medical history.  42 USC §2000ff-1. Other exceptions include where the employer performs DNA analysis for law enforcement, where the information is provided as part of a Family Medical Leave Certification, or where the employer offers health or genetic services and, pursuant to a written authorization from the individual, provides the individuals genetic information only to the individual and a health care professional or certified genetic counselor and never to the employer except in non-identifying aggregate terms.  42 USC §2000ff-1.

If an employer possesses genetic information, such information must be in separate medical files and treated as a confidential medical record like records under the Americans with Disabilities Act.  Disclosure is limited to government public health agencies where it concerns a contagious disease that presents an imminent hazard and the individual is notified of the disclosure, officials investigating compliance with the law, research in compliance with Federal Regulations, disclosure under compliance with FMLA, or at the written request of the employee.  42 USC §2000ff-5.

Under GINA, employees rights who have been violated are entitled to damages.  Damages that are available are those that are available under other forms of discrimination or retaliation investigated by the EEOC.  If you think that your employer has violated your rights under GINA, please contact Jensen Law Office, LLC to discuss your situation.

Unemployment Appeal Hearing

Jensen Law Office, LLC recently was successful in reversing a local Unemployment office’s decision to deny benefits due to alleged misconduct at a recent Unemployment Appeal hearing.  If you have been wrongfully denied your unemployment benefits, contact Jensen Law Office, LLC to discuss your situation.

Unpaid Wages and Overtime

In Illinois, all non-exempt hourly employees must earn at least the minimum wage, and must be paid time and a half (“overtime”) for all hours in excess of forty per work week.  Minimum wage and overtime are governed by a number of state and federal statutes, including the Illinois Wage Payment and Collection Act (“IWPCA”), Illinois Minimum Wage Law (“IMWL”), and Fair Labor Standards Act (“FLSA”).

The FLSA contains provisions setting the federal minimum wage.  Effective July 24, 2009, the federal minimum wage is $7.25 per hour.  The IMWL contains provisions setting the state minimum wage for Illinois, currently at $8.00 per hour.  If both the FLSA and the IMWL apply to an employee, the employee is entitled to earn the higher of the minimum wages set forth in the statutes.

The FLSA and IMWL each contain overtime provisions which mandate that non-exempt hourly employees must be paid time and a half for all hours worked in excess of forty hours in one work week.  An employee must be compensated for all time worked.  However, certain workers, particularly salaried employees, may be exempt from these overtime provisions.

The IWPCA mandates that employers in Illinois must pay each employee for all time that the employee worked, within two weeks of the end of the period in which the wages were earned.  The IWPCA further regulates final compensation upon the end of employment, and makes it unlawful for any employer to deduct wages from an employee’s paycheck without the written consent of the employee

Any non-exempt employee that has not been paid the appropriate wage for their time at work, or has not been paid for their overtime can pursue recovery of those amounts, attorney’s fees, and statutory penalties including liquidated damages.  Should you feel that you have not been paid the appropriate wages for the hours that you have worked, or should you feel that you have not received all your compensation in a timely manner, please contact Jensen Law Office, LLC to fully discuss your rights and your status under the above acts.

Family and Medical Leave Act

The Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”) provides that eligible employees may take up to twelve weeks of unpaid leave during any twelve-month period, for any of four general reasons:

1. For the birth and care of a newborn child;
2. Adoption placement;
3. Care for an immediate family member (spouse, parent, or child) with a serious health condition; or
4. To take medical leave because the employee is unable to work due to a serious health condition.

Under the FMLA, soldiers who are about to be deployed, veterans, and designated family of those individuals have additional rights.

While not all employees are eligible for FMLA coverage, an employer cannot interfere with an eligible employee’s FMLA rights, or to deny an employee properly requested FMLA leave.  Further, employers are required to notify or inform employees of their FMLA rights if the employer has notice of a condition that may qualify an eligible employee for leave.  Upon return from leave, eligible employees must be reinstated to the same or an equivalent position and cannot be retaliated against for the exercise of their FMLA rights.

If you feel that you have been denied one of your rights under the FMLA, please contact Jensen Law Office, LLC to discuss your situation.