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Are Your Text Messages and Social Media Activity Private in the Workplace?

June 28, 2017

Employee rights advocates often get asked the following question:  What happens if my boss wants me to share private text messages or social media posts for a pending lawsuit?

There is no "one size fits all" answer to this question.  We live in a data saturated environment full of electronic media, and the internet is snot a private place for communication.  With the rampant use of texting and social media posts about employment matters, it’s becoming harder for companies to control and access certain employee communications, especially when it comes to employee’s personal devices.  Outside of authorship issues (i.e. someone using your associated phone or phone number to impersonate you) the legal rules of civil procedure impose certain obligations regarding requested documents in the company’s “possession, custody and control”.  

As it relates to personal devices, many companies have Bring Your Own Device (BYOD) policies, wherein they allow employees to use their own personal cell phones, laptops, etc. for work purposes.  I’ve helped companies write BYOD policies and understand how such policies can create a dilemma when it comes to producing text communications in litigation.

For example, looking at a 2013 employment discrimination case out of Kansas, Cotton vs. Costco Wholesale Group, it’s easy to see how access to certain communication can hit a legal roadblock.  In Cotton vs. Costco Wholesale Group, after suing Costco for employment discrimination, former Costco employee, Wayne A. Cotton, wanted Costco to produce text messages from other employees he found relevant to his pending complaint.  The problem, though, was Coscto encouraged employees to communicate via texting and the devices used to text were personally owned, as Costco had a BYOD environment, where employees could communicate on their personal devices.  Even when communications were business-related, the Court found that Costco had no legal right to obtain the requested text messages, as Coscto was not in possession, custody or control of employee’s personal phones and data contained therein.

In Illinois, employers are limited in what personal electronic data can be used in employment decisions.  The Illinois Department of Labor (IDOL) enforces the Right to Privacy in the Workplace Act, which was amended in 2013 to specifically make it unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website.

Pietrucha Law Firm helps employees and companies resolve with workplace disputes.  Our aim is to resolve disputes as harmoniously as possible, only resorting to litigation when necessary.  For more information, call (630) 796-3859 or visit us online at www.PietruchaLaw.com for 24/7 online chat.  The above information is not legal advice, and provided for general information purposes only. Although prepared by professionals, this information should not be used as a substitute for legal advice.  Reading such does not establish an attorney-client relationship as every case is unique and relies on individual facts.

Legislative Update: Top 8 New Illinois Employment Laws in 2017

January 3, 2017

The Top 8 New Illinois Employment Laws in 2017

January 1st marked a new year with nearly 200 new Illinois scheduled to take effect in 2017.  Among these new laws are many governing Illinois labor forces, employees and employers.  See below for a quick overview of some of the key laws that will impact Illinois employees this new year.  

1.  Non-Competes for Illinois Low-Wage Employees cannot be mandatory

 

In June 2016 Illinois Attorney General file a lawsuit against sandwich shop Jimmy John's over non-compete arrangements with employees who primarily take food orders, make and deliver sandwiches at nearly 300 locations in Illinois.   In December 2016 Attorney General Lisa Madigan announced a settlement with Jimmy John's for imposing highly restrictive non-compete arrangements on its low-wage sandwich shop employees and delivery drivers, and in part requiring Jimmy John's to notify all current and former employees that their non-compete agreements are unenforceable.   In 2017, the Illinois Freedom to Work Act (SB 3163/ PA 99-0860) will be enforced.  The law prohibits employers from requiring non-compete clauses for low-wage employees, such as Illinois food order takers and food delivery drivers.

 

2.  Illinois Employees can use Sick Leave for direct family members

 

Do you ever need to take time off from work to take of your sick child or family member?  Does your boss give you a hard time or question your use of sick time for things such as medical appointments for a child?  Under the Illinois Employee Sick Leave Act (HB 6162/PA 99-0841), employees may use personal sick leave benefits for absences due to an illness, injury, or medical appointment of an employee’s direct family members.  This law is separate from the federal Family and Medical Leave Act of 1993 (FMLA) which gives select workers up to 12-weeks of unpaid, job-protected leave for serious health conditions when eligibility requirements are met.

 

 

 

 

 

3.  Unpaid leave for workers impacted by Illinois Domestic/Sexual Violence 

 

According to the Illinois State Police, as recent as 2014 over 65,000 intimate violence cases were reported in Illinois.  Unfortunately many cases go unreported.  Experiencing these issues can bring about crisis and require employees to take time off from work.  In 2017, under the Illinois Victims' Economic Security and Safety Act ((HB 4036/PA 99-0765), Illinois employers must provide unpaid work weeks of leave to an employee who is a victim of domestic or sexual violence or has a family member who is a victim.  The exact amount of allowed time off is determined based on the size of the business.

 

 

4. Select Illinois Cosmetology Licensees Must Train for Domestic Violence

 

Many Illinois workers rely on professional licensing issued by the Illinois Department of Financial and Professional Regulation (IDFPR) and other state agencies.   Starting in 2017, a new law will require domestic violence training for select Cosmetology Act licensees.  Effective January 1, 2017, a new law requires a one-hour, one-time education course on domestic violence for all new cosmetologists, cosmetology teachers, estheticians, hair braiders, nail technicians and other select groups.  IDFPR states the new requirement will not be effective until the promulgation and implementation of Rules, which require approval by the Joint Committee on Administrative Rules (JCAR)

 

5. Illinois Health Care Workers License Reinstatement Option for non-sexual, nonviolent felonies

 

Many Illinois workers rely on professional licensing issued by the Illinois Department of Financial and Professional Regulation (IDFPR) and other state agencies.   The Illinois Department of Professional Regulation Law of the Civil Administrative Code of Illinois (SB 0042/PA 99-0886) allows health care workers to petition to have their licenses reinstated if they committed certain non-sexual, nonviolent felonies that happened at least 5 years ago.

 

6. Illinois Plumbers must complete annual training

 

Improper plumbing can cause serious health issues, as it can result in unsafe drinking water or the escape of toxic gases.  To protect the public, the Illinois Department of Health (IDPH) regulates the plumbing trade in Illinois and all plumbers who plan, inspect, install, alter, extend, repair and/or maintain plumbing systems in the state must be licensed.  IDPH licenses nearly 9,000 plumbers and 2,000 apprentice plumbers.   In 2017, the Illinois Plumbing License Law (HB 5913/PA 99-0504) will require licensed plumbers to complete 4 hours of continuing education each year.

 

 

7.  Illinois Professional Licenses, Criminal Records and Child Support Owed

 

Many Illinois workers rely on professional licensing issued by the Illinois Department of Financial and Professional Regulation (IDFPR) and other state agencies.  Under a new law, IDFPR may not deny a request for a professional license solely on the basis of an applicant's criminal record unless he or she was convicted of a crime directly related to the occupation for which the license is sought.  The new law loosens rules involving discipline for license holders who owe child support (See Illinois HB 5973/PA 99-0876).

 

 

 

 

8. Illinois requires pilots with federal flying credentials to pay one-time registration fee

 

Starting in 2017, Illinois pilots will have to pay a one-time registration fee to the state.  Changes to the Illinois Aeronautics Act require pilots to register federal flying credentials with the state of Illinois for a one-time $20 fee (See HB 4387/PA 99-0605).

 

 

Pietrucha Law offers affordable legal services for current and fired employees in Illinois and Washington.   Our team is ready to assist with employment and other legal matters.  Visit our website for more information www.PietruchaLaw.com or follow us on social media @PietruchaLaw on Instagram, Twitter and Facebook.

U.S. Government Offers Resources to Current or Former Wells Fargo Employees

October 26, 2016

After recent reports regarding employment activities at Wells Fargo, questions have been raised about compliance with labor laws.  The U.S. Department of Labor pledged to take these allegations seriously and offers current or former employees of Wells Fargo the opportunity to ask questions with the Department's Wage and Hour Division, Employee Benefits Security Administration, Office of Federal Contract Compliance Programs and/or OSHA.

Under U.S. law, certain employees who feel they were terminated or retaliated against for complaining of unlawful activity or whistleblowing, not paid properly, have issues with retirement or health benefits plans, believe they were unlawfully discriminated against because of their protected class (race, color, religion, sex, sexual orientation, gender identity, national origin, disability, veteran status) may have legal rights.  Besides the federal laws, state laws may offer further protection.    For more information, contact the appropriate governmental agency in your state or contact an employment attorney to discuss your concerns.

Department of Labor Online:  https://www.dol.gov/wellsfargo/

 

 

 

Attorney Pietrucha Appointed to Downers Grove Liquor Commission

September 23, 2016

FOR IMMEDIATE RELEASE:  September 23, 2016

Attorney Pietrucha Appointed to Downers Grove Liquor Commission

Downers Grove, IL - Attorney Cynthia Pietrucha has been appointed to the Village of Downers Grove Liquor Commission.  Attorney Pietrucha will serve a three-year term expiring August 31, 2019.  In her role, Attorney Pietrucha will review applications for liquor licensees, make recommendations concerning Liquor Ordinance violations and appropriate disciplinary action to be taken.   "I am excited to serve Downers Grove, my hometown."

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ISBA Young Lawyers Division 2015 Day at the Races

October 3, 2015

In September 2015, Pietrucha Law Firm joined the Illinois State Bar Association (ISBA) Young Lawyers Division for the annual day at the races at Arlington Park in Arlington Heights, Illinois.   It was a fun way to socialize with Illinois lawyers and enjoy the nice weather.  Pietrucha Law Firm is honored to be a member of the ISBA as well as an ISBA Pro Bono Partner.

Photos by Sabrina Edwards.