What is employment discrimination and how can I avoid it?

Discriminatory employment practices include bias in hiring, firing, promotion, job assignment, compensation, retaliation, and harassment based on the protected characteristic of an employee.  Employment discrimination may be overt or subtle but is always illegal when based on an employee’s race, color, national origin, religion, sex, age, disability, citizenship status, and genetic information.

In Illinois, it is also illegal to discriminate based on an employee’s sexual orientation, ancestry, marital status, pregnancy statue, or military status.  In the City of Chicago, moreover, it is unlawful to discriminate based on parental status, source of income, or credit history.

To avoid discrimination or the appearance of discrimination, employers must have set policies in place for important employment actions, apply those policies equally to all employees, current and prospective, and document the reasons for employment decisions to make sure they can show a legitimate reason for unfavorable treatment of an employee.

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What are some common compliance issues faced by employers?

Many employers face compliance issues because they don’t realize that compliance begins with the hiring process.  For example, in Illinois, employers may not ask about an applicant’s credit history and are restricted in when they may ask about an applicant’s criminal history.  Employers must also verify employment eligibility by having employees fill out I-9 and W-4 forms.

Employers face issues with federal, state, and local wage and hour laws that govern how much and when employees must be paid.  Plus, they must comply with a number of federal regulations including the Americans with Disabilities Act, the Family and Medical Leave Act, and the Patient Protection and Affordable Care Act.  Employers also have to watch out for employment discrimination issues and properly classify their workers as either employees or independent contractors in compliance with the Fair Labor Standards Act.

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How should I maintain my employee personnel files?

Thorough recordkeeping is the key to defending your decisions as an employer, and employee personnel files are the right place to store important information about your individual employees.  Your documentation should begin before you even hire an employee, recording reasons for your decisions in employment screening and the hiring process.

Once an employee is hired, open a personnel file to store performance review and evaluations, catalog employee performance and behavioral issues, and chronicle reasons for employee separation, whether voluntary or involuntary.  Remember to keep personnel files confidential, only giving access to management to protect your employees’ privacy.

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What are the best practices for developing and enforcing employment policies?

When you’re updating your employment policies, remember that a good employee handbook is an employer’s first line of defense.  Keeping your handbook up-to-date ensures that your employees know your expectations and provides evidence of your policies and procedures in the event of a dispute.

To be fully protected, you must keep your handbook up to date, uniformly enforce your policies against all employees, and carefully document the reasons for decisions related to hiring, firing, employee performance, employee discipline, and termination.  Also be sure to use measurable, meaningful criteria for promotions and to be thorough, professional, and respectful in handling employee-related issues including discrimination and harassment complaints.

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What is employment law and why do I need an experienced employment law attorney?

Employment law consists of thousands of federal and state statutes, administrative regulations, and judicial decisions that govern the relationship between employers and employees.  This area of the law is constantly changing, but an experienced employment law attorney can help you understand your obligations as an employer, explain the steps you need to take to comply with applicable laws, and defend your actions when problems arise with your employees.

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What is a landlord’s lien and how does it affect my business?

Commercial leases often include something called a landlord’s lien.  A landlord’s lien is a provision granting landlords a first lien in all of the personal property located on the premises. Do not agree to such a provision, because if your landlord has a lien on all of your assets, your bank cannot, thereby causing you trouble if you attempt to finance or refinance a project.

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How can I limit personal liability in a commercial lease?

Reduce your personal liability by placing a limit on personal guarantees. Personal guarantees are required by most landlords, but the scope of those guarantees is often negotiable. You can reduce your personal exposure by limiting the guarantee to a set number of years or by decreasing the extent of the guarantee by a percentage each year.

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What do common area maintenance fees include?

Don’t let your landlord pass the buck to you with inappropriate common area maintenance (CAM) costs. Common area maintenance clauses require tenants to pay their proportionate share of the maintenance and operation costs but exactly what’s included varies from lease to lease.  Certain fees make sense, but your landlord’s capital expenditures and tacked-on administrative fees may cause greater costs than you should bear. Try to get a cap to CAM costs, increases, and reasonable administrative fees that are tied to the services your landlord provides.

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How can I be sure the square footage is calculated correctly?

Only pay for the space you get by double checking landlord measurements of rental spaces. Commercial tenants often overpay for their spaces because of the inaccurate measuring of the premises. “Phantom space,” the extra space listed on lease agreements that does not actually exist, costs you extra money in base rent and CAM, and quickly adds up over a 10-year term. Before you sign, measure the space yourself and recalculate the rent based on the actual square footage delivered.

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What are continuous operations clauses?

Continuous operations clauses require you to continuously operate your business during the days and hours set forth in the lease. If you were not to continuously operate your business during those times, the landlord could terminate the lease. A more even-handed lease should remove any continuous operation requirement or at least provide exceptions to continuous operation, permitting you to close for repair, remodel, refurbishment or in the event of a casualty.

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