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					                  THE ILLINOIS

VICTIMS’ ECONOMIC SECURITY AND SAFETY ACT OF 2003

            A COMPARATIVE ANALYSIS




                                     Julie A. Piotrowski-Govreau
I.      Introduction

        On August 25, 2003, Governor Rod Blagojevich signed into law the Victims’ Economic

Security and Safety Act (VESSA)1. The Act provides job protected leave to employees who are

victims of domestic violence themselves or who have family members who are victims of

domestic violence. Mirroring provisions of the federal Family and Medical Leave Act and the

federal Americans with Disabilities Act, VESSA is designed to provide job protected leave to

employees, to require employers to provide reasonable accommodations to employees who are

faced with the problems of domestic violence, and to prevent discrimination against employees

who are victims of domestic violence.

        A.       Domestic Violence

        Domestic violence is a leading cause of physical injury to women.2 Domestic violence

obviously has a substantial impact on women’s physical health, emotional health and financial

security.3 Domestic violence also takes its toll on the family members of the victim who is being

abused. In fact, it is estimated that domestic violence accounts for at least 15% of total crime

costs in the United States each year.4

        When a victim of domestic violence works, domestic violence takes a toll on the

employer and co-workers in the workplace. Victims of domestic violence who are employed

often suffer adverse consequences in the workplace including job loss or the threat of job loss,

loss of health insurance benefits, loss of income and loss of self esteem as a direct result of the

violence they have suffered.5 Approximately 50% of victims of sexual assault lose their jobs in



1
  Illinois Department of Labor, Notice to Employers and Employees, Required Posting.
2
  820 ILCS 180/5. General Assembly findings.
3
  Id.
4
  Id.
5
  Id.


                                                       1
the aftermath of the assaults.6 Between one-fourth and one-half of victims of domestic violence

have lost a job due, in part, to domestic violence.7

        Perpetrators of domestic violence do not leave their violent actions or threats at the office

door. Studies indicate that approximately 15% of homicides against women in the workplace are

committed by the victim’s abusive partners.8 As many as 74% of victims of domestic violence

were harassed at work by their abusive partners.9 Abusers seek control and control is

accomplished by interfering with their victim’s ability to work, including preventing their victim

from going to work, harassing their victims at work, limiting the access of their victims to cash

or transportation and interfering with child care arrangements of their victims.10 Not only do

these actions take a toll on the victim of the violence, but they have a significant impact on the

work environment, co-workers and employers. The Bureau of National Affairs has estimated

that domestic violence costs employers in the United States between $3-5 billion annually in lost

time and productivity.11 While employers generally have a legal obligation to prevent

harassment and violence within their own workplace, up until August 25, 2003, Illinois

employers have not had an obligation to recognize or address the impact of domestic violence in

the workplace.

        In 1994, the Violence Against Women Act was passed by Congress (VAWA). The 1994

Act focused primarily on the criminal aspects of domestic violence, with the goals of

criminalizing acts of domestic violence and violations of protective orders for women.12 On

February 26, 1997, Senator Paul Wellstone (D. MN), introduced the Battered Women’s
6
  Id.
7
  Id.
8
  Id.
9
  Id.
10
   Id.
11
   Id.
12
   Ford, David A., Controlling Violence Against Women: A Research Perspective on the 1994 VAWA’s Criminal
Justice Impacts, National Institute of Justice, July 2002.


                                                     2
Employment Protection Act as an amendment to the Family and Medical Leave Act (FMLA) to

provide job-protected leave to victims of domestic violence.13 The Wellstone proposal was

rolled into the 1999 Violence Against Women Act, which sought to renew the VAWA.14

Although efforts to expand FMLA and provide greater protections to women did not make the

final bill provision of VAWA 2000, VAWA did authorize the Attorney General to conduct

studies of the effects of domestic violence on the workplace and to study unemployment

compensation for victims of domestic violence.15

        The failure of Congress to address the impact of domestic violence on the workplace

compelled victim’s rights organizations in individual states to lobby their own legislatures to

pass protections for victims of domestic violence. As described in more detail below, the laws

that have been enacted across the states vary from merely permitting an employee to attend a

court hearing, to the very comprehensive rights granted under Illinois’ VESSA.

        VAWA 2000 expires this year and the issue of job protection for victims of domestic

violence and economic protections are likely to be a key issue in the renewal legislation.16 In

fact, Senator Patty Murray (D-WA) has proposed legislation which would create an entirely new

leave statute for addressing domestic violence and expansion of unemployment compensation to

include compensation to victims of domestic violence.17




13
   American Bar Association, Section of Individual Rights and Responsibilities, Runge, Robin. Double Jeopardy:
Victims of Domestic Violence Face Twice the Abuse. Human Rights – Volune 25, Number 2, Spring 1998.
14
   Violence Against Women Act of 2000 Bill Summary, www.acadv.org/VAWAbillsummary.html, March 5, 2005.
15
   Id. NOTE: as of March 8, 2005, no reported study has been published.
16
   National Coalition Against Domestic Violence, The Clock is Ticking on Women’s Lives,
www.nacdv.org/takeaction/VAWA_138.html, March 5, 2005.
17
   Paul & Sheila Wellstone Domestic Violence Protection Act, http://murray.senate.gov/news.cfm?id=219659,
March 5, 2005.


                                                       3
        II.      Legislative History

        A.       Who, What, Where, When and Why?

        VESSA was sponsored in the Illinois House of Representatives by Patricia Bailey (D-

Chicago) and in the Illinois Senate by Barack Obama (D-Chicago).18 The law passed the

General Assembly unanimously and became effective immediately upon the Governor’s

signature on August 25, 2003.19

        According to the General Assembly, VESSA is intended to serve multiple purposes.

First, the legislature believed that VESSA would help reduce the incidence of domestic violence

and sexual violence by enabling victims of domestic violence and sexual violence to maintain the

financial independence necessary to leave abusive situations, achieve safety and minimize

physical and emotional injuries.20 Next, VESSA is intended to reduce the negative economic

consequences of domestic or sexual violence to employees and employers.21 Primarily, the

legislature sought to remedy the failure of existing federal and state laws to protect the

employment rights of employees who are victims of domestic or sexual violence or who have

family members who are victims of domestic violence.22

        One may ask why a law like VESSA was necessary? The answer is simple: unless an

employee was a victim of violence themselves or had an immediate family member who was a

victim of domestic violence that required medical care and treatment, FMLA job-protected leave

did not apply. That left the employee with only the ability to take whatever paid or unpaid leave

18
   Office of the Governor, Gov. Blagojevich continues commitment to protect victims of domestic violence from
employment discrimination, Illinois Department of Labor launches statewide awareness campaign on Victims’
Economic Security and Safety Act (VESSA), October 1, 2004, found at
www.illinois.gov/PressReleases/PrintPressRelease.cfm?SubjectID-1&RecNum=3437.
19
   Id.
20
   820 ILCS 180/15 (2003). Purposes.
21
   Id.
22
   Id.


                                                        4
the employer granted as a general employee benefit. Too often, this leave was not sufficient to

permit the victim of domestic violence to appear in court, seek counseling or medical treatment

or take other legal or protective measures. VESSA expands the basic job protections of FMLA

to encompass non-medically related leaves of absence from work as long as they relate to

domestic violence. The success of the Act remains to be seen.

        B.       Application of VESSA

        VESSA’s application is far reaching and includes the State as an employer or any agency

of the State; any unit of local government or school districts or any person who employs at least

fifty (50) people and was effective immediately.23 Several labor and employment law firms in

Chicago did post information about VESSA in newsletters sent to clients.24 It is certainly

questionable whether companies that did not utilize regular legal services from an employment

firm were made aware of the law. During October and November 2004, this writer randomly

contacted the human resources departments of over sixty companies in the greater Chicagoland

area, and found that only three had heard of VESSA and were complying with the law.

        VESSA requires that every employer covered by the act post in a conspicuous place on

the premises, a notice, prepared by the Illinois Department of Labor, summarizing the

requirements of the law and providing information on how to file a charge.25 (Exhibit A) It is

likely that many companies may not even become aware of the law until they receive their

updated mandatory Illinois employment law postings, which now include VESSA.26



23
   820 ILCS 180/10(10) (2003).
24
   Wildman Harrold, New Law Grants FMLA-Type Leave Rights to Domestic and Sexual Violence Victims; Fisher &
Phillips, LLP, Labor Alert, Victims’ Economic Security and Safety Act (VESSA), Andrews Koehler & Passarelli,
P.C., September 2003, Littler Mendelson, ASAP, New Employment Laws Help Ring in the New Year in Illinois,
December 2003; Jackson Lewis, Legal Updates, Notice Required under New Illinois Law Providing Workplace
Leave to Victims of Domestic Violence, October 24, 2003. Conspicuously missing is an article from Seyfarth Shaw.
25
   820 ILCS 180-40 (2003).
26
   Accupost Compliance Poster Company, Illinois required posters. www.accupost.com/poster_info.asp/ Illinois.


                                                       5
         A prime example of the lack of knowledge of VESSA is evidenced by SBC

Communications. Communications Workers of America, Local 4250, based in Chicago

announced on July 16, 2004, that SBC had added a “new leave of absence” called the VESSA

leave to their Absence Policy.27 This notice occurred nearly one year after VESSA became

effective.

         Due to the lack of knowledge of the law, Governor Blagojevich proclaimed October 2004

as “Illinois Domestic Violence Awareness Month.”28 In conjunction with this proclamation, the

Illinois Department of Labor was charged with launching a statewide awareness campaign about

VESSA.29 The Illinois Department of Labor’s Equal Opportunity Workforce Division began

conducting free seminars concerning the rights and responsibilities of employees and employers

under VESSA.30 In 2005, the Equal Opportunity Workforce Division will be scheduling five

training sessions throughout the state for employers and employees on compliance with the

statute.31 The Illinois Criminal Justice Information Authority, who received $1.3 million in

federal funding toward domestic violence prevention services and the Illinois Department of

Human Services were supposed to partner with the Illinois Department of Labor to further

publicize the law.32 The only evidence of a “partnership” is the ICJIA’s reference on its website




27
   www.cwalocal4250.org/operatorservices/index.dfm, accessed on October 31, 2004. The CWA website also
includes links to the SBC policy and compliant forms.
28
   Office of the Governor, Governor Blagovjevich continues commitment to protect victims of domestic violence
from employment discrimination. Illinois Department of Labor launches statewide awareness campaign on Victims’
Economic Security and Safety Act (VESSA), October 1, 2004.
29
   Id.
30
   VESSA Know Your Rights Seminar flier, http://www.state.il.us./agency/idol, February 1, 2005. Upcoming
seminars are scheduled for Palos Hills, East Moline, Decatur, Harrisburg, Rockford and Springfield.
31
   Id.
32
   Id. The Illinois Criminal Justice Information Authority refers visitors to its website to the Illinois Department of
Labor for information on VESSA. See www.icjia.state.il.us. The Illinois Department of Human Services website
has no information on VESSA available. See www.idhs.state.il.us.


                                                          6
to VESSA with a link to the Illinois Department of Labor’s website.33 The Illinois Department

of Human Services has no information on VESSA available on its website.34

III.    VESSA

        A.      Statutory Provisions

        VESSA is comprised to two distinct parts: (1) Entitlement to leave which mirrors the

federal FMLA in terms of duration of leave and job protections and (2) Victim’s employment

sustainability which mirrors the Americans with Disabilities Act (ADA) in terms of

antidiscrimination and reasonable accommodation provisions. Both the FMLA and the ADA

have a significant legal history and are, for the most part, uniformly interpreted by the courts.

Where VESSA is not preempted by federal law, the courts will likely look to federal courts’

interpretations of comparable FMLA and ADA decisions in fashioning their opinion.

Additionally, both the FMLA and the ADA are highly regulated by federal agencies, that have

issued thorough guidance including forms, postings and compliance assistance.35 As will be

described in greater detail below, although charged with enforcement of VESSA, the Illinois

Department of Labor has issued little guidance to employers and there are currently no forms

available to assist in compliance.

                1.       Entitlement to Leave

        VESSA entitles an employee who is a victim of domestic violence or who has a family or

household member who is a victim of domestic violence to take unpaid leave from work to

address the domestic violence. VESSA’s protection of victims of “domestic or sexual violence”




33
   Domestic Violence Resources, See www.state.il.us/public/index.cfm.
34
   http://www.dhs.state.il.us (March 6, 2005.)
35
   The Department of Labor regulates the FMLA. See www.dol.gov/esa/whd/fmla. The Equal Employment
Opportunity Commission regulates the ADA’s discrimination provisions. See www.eeoc.gov/types/ada.html.


                                                     7
is broadly defined by the act to include domestic violence, sexual assault, or stalking.36

Domestic violence, itself, is defined by VESSA to include acts or threats of violence, sexual

assault, death to the person, or the person’s family or household member and conduct that causes

the specific person to have such distress or fear of same.37 A “household member” is a spouse,

parent, son, daughter, or, importantly, persons jointly residing in the same household.38

        An employee is entitled to take up to twelve (12) work weeks of leave during any 12-

month period.39 The leave may be intermittent.40 Leave may be taken to (a) seek medical

attention for, or recovery from, physical or psychological injuries caused by domestic violence to

the employee or a member of the employee’s household; (b) obtaining services from a victim

services organization for the employee or the employee’s household member; (c) obtaining

psychological or other counseling for the employee or the employee’s household member; (d)

participating in safety planning, temporarily or permanently relocating, or taking other action to

increase the safety of the employee or the employee’s household member from future domestic

or sexual violence or to ensure economic security; and/or (e) seeking legal assistance or remedies

to ensure the health and safety of the employee or the employee’s household member, including

preparing for or participant in any civil or criminal legal proceeding related to the domestic

violence.41

        In order to take job-protected leave under VESSA, an employee is expected to give at

least forty-eight (48) hours notice of the intent to take leave, unless providing such advance

notice is impracticable.42 An employee, who cannot provide forty-eight (48) hours notice is still


36
   820 ILCS 180/10(5) (2003).
37
   820 ILCS 180/15(6) (2003).
38
   820 ILCS 180/10(12) (2003). Arguably this definition of includes domestic partners.
39
   820 ILCS 180/20(2) (2003).
40
   820 ILCS 180/20(a)(3) (2003).
41
   820 ILCS 180/20(a)(1) (2003).
42
   820 ILCS 180/20 (b) (2003).


                                                        8
entitled to job protected leave under the act, provided the employee complies with the

certification provisions of the Act within a reasonable time.43

        Although not mandatory under the Act, an employer may require that an employee

provide certification the employee or the employee’s household member is a victim of domestic

violence and the leave requested is for one of the purposes enumerated in the act.44 The statute

does not set forth any kind of specific requirements or content for the employee certification and

it need only be submitted by the employee within a reasonable time period after request by the

employer.45 The certification must be in the form of a sworn statement by the employee and

include documentation from an employee, agent or volunteer of a victim services organization,

an attorney, a member of the clergy, or a medical or other professional from whom the employee

or the employee’s household member has sought assistance; a police or court record; or other

corroborating evidence.

        Like the majority of labor and employment laws, VESSA includes broad prohibitions

against interference or restraint from exercising rights under the Act, as well as prohibiting

discrimination, harassment, retaliation or discharge for exercising rights under the act.46

The benefits protected under VESSA -- job position, job pay, accrued employment benefits, and

maintenance of health insurance benefits for the employee and dependents -- are the same as

those provided under FMLA.47 VESSA also gives an employer a right of recovery for the

premium the employer paid for maintaining coverage under a group health plan for an employee




43
   Id.
44
   820 ILCS 180/20(c)(1) (2003).
45
   Id.
46
   820 ILCS 180/20(f). Prohibitions against discrimination include prohibiting discharge, discrimination,
harassment or retaliation for assisting or testifying in any inquiry or proceeding relating to the Act.
47
   820 ILCS 180/20(e) (2003). Maintenance of benefits does not mean that an employee who utilizes VESSA is
entitled to accrue seniority or additional benefits under the period of leave.


                                                      9
and their family.48 However, if the employee fails to return to work because of the continuation,

recurrence or onset of domestic violence or other circumstances beyond the control of the

employee, VESSA prohibits the employer from recovering the premiums paid during the

VESSA leave.49 The Act leaves conspicuously blank the definition of what circumstances

“beyond the control of the employee” would disallow the employer to recover premiums, and it

is likely that this area may be open to conflicting interpretation. Further guidance will likely be

necessary to clarify this section of the act. Strictly construed, if an employee doesn’t come back

to work because of continuing domestic violence or other circumstances, the employer not only

loses an employee, but also loses any sums expended in continuing coverage for that employee.

                  2.       Victim’s Employment Sustainability

         In addition to the general anti-discrimination provisions of the leave guarantee sections of

the Act, VESSA also provides a more comprehensive anti-discrimination provision under §30 on

Employment Sustainability. Specifically, VESSA prohibits an employer from failing to hire,

refusing to hire, discharge, harassment, or other discrimination against any individual with

respect to the compensation, terms, conditions or privileges of employment because (1) the

individual is or is perceived to be a victim of domestic violence; (b) attended, participated in,

prepared for or requested leave to attend, participate in or prepare for a criminal or civil court

proceeding relating to domestic violence; requested an adjustment to a job structure, workplace

facility or work requirement in response to actual or threatened domestic violence.50

         This section mirrors provisions of the Americans with Disabilities Act, in terms of

prohibitions, definitions and the requirement that an employer provide a reasonable

48
   820 ILCS 180/20(e)(2)(B) (2003).
49
   820 ILCS 180/20(e)(2)(B) (2003). The act further provides that upon such an occurrence, the employer may seek
certification that mirrors the certification required for requesting a leave of absence under the act, as proof that the
employee cannot return to work and will not have to reimburse the employer for benefits.
50
   280 ILCS 180/30 (2004).


                                                           10
accommodation to a requesting employee. VESSA also prohibits discrimination against an

employee because the workplace is disrupted or threatened by the action of a person whom the

employee states has committed or threatened to commit domestic violence against the employee

or a member of the employee’s household.51 This provision has the potential of being highly

problematic as employers have a commensurate responsibility to all of its employees to provide a

safe workplace. It is not inconceivable that an employer, who complies with this provision of the

Act, could be found negligent in tort if an innocent employee is harmed as a result of violence

between the employee seeking protection and the perpetrator.

        VESSA has a reasonable accommodation provision. Specifically, an employer may be

required to provide a reasonable accommodation to an employee who falls under the protections

of the act, unless providing such a reasonable accommodation would present an undue hardship

to the employer.52 Unlike other provisions of VESSA, “undue hardship” is defined by the Act.

An employer may be in compliance under the act if the employer can provide that an

accommodation would cause significant difficulty or expense.53 The significance of the

difficulty or expense of providing the reasonable accommodation is measured by considering the

nature and cost of the accommodation, the financial resources of the employer, the number of

people employed, the effect on resources of the employer, the type of operation the employer has

and the geographic separateness of various employer locations.54 The undue hardship provision

has generally not been problematic under other employment laws.




51
   280 ILCS 180/30(a)(2) (2004).
52
   820 ILCS 180/30(b)(3) and (4) (2004). The definitions of undue hardship mirror those of the ADA – factors to
consider in evaluating whether an accommodation would cause an undue hardship include the nature and cost of the
accommodation, the overall financial resources of the facility where the accommodation is required, the overall
financial resources of the employer and the type of operation or agency of the employer.
53
   820 ILCS 180/30(a)(1)(4) (2004).
54
   820 ILCS 180/30(a)(1)(4) (2004).


                                                       11
        B.       Comparison to FMLA

        VESSA mirrors FMLA in many distinct categories, such as the length of job protected

leave, benefit protections and anti-discrimination and interference provisions. FMLA and

VESSA both provide up to twelve weeks of job protected leave to employees.55

        FMLA restricts employee’s rights to leave to (a) the birth of a son or daughter of the

employee; (b) the placement of a son or daughter with an employee due to adoption or foster

care; (c) to care for the employee’s spouse, son, daughter, or parent; or (d) the employee’s own

serious health condition.56 Conspicuously absent from coverage is the care of household

members which may encompass domestic partners, which is contemplated by VESSA. Also,

FMLA restricts coverage where spouses are employed by the same employer. Under FMLA,

where both spouses work for the same employer, the spouses may receive 12 weeks of leave in

the aggregate, not separately.57 Broadly interpreted, VESSA has no such restriction. However,

since VESSA states that the act is not intended to grant more rights to employees than provided

under FMLA, an employer arguably may impose such a limitation on VESSA leave.

        Unlike FMLA, which restricts coverage to 50 employees working within worksites 75

miles of each other58, VESSA has no such geographic restriction. VESSA is applicable to every

employer that has at least fifty (50) employees within the State of Illinois.59 Therefore, an

employer with five employees scattered at ten worksites throughout the state is an employer

covered under the law.




55
   26 U.S.C.S. §2600 et seq. (Lexis 2004).
56
   26 U.S.C.S. §2612(a)(1) (Lexis 2004).
57
   26 U.S.C.S. §2612(f) (Lexis 2004). For example, if couple has a child, husband and wife, if employed by same
employer, must split the 12 weeks of FMLA leave between them, or if Wife takes all 12 weeks, husband may only
take FMLA for his own serious medical condition, but may not take FMLA leave to care for his child.
58
   26 U.S.C.S. §2611(B) (Lexis 2004).
59
   820 ILCS 180/10(10) (2003).


                                                       12
         Unlike FMLA, VESSA makes no distinction between full-time and part-time

employees.60 All employees are covered under VESSA. VESSA defines “employee” broadly

enough to also encompass volunteers and welfare to work recipients.61 Employees must work

for the employer for a full year before being eligible for FMLA leave and the employee must

have worked 1250 hours for an employer within a twelve month period before they are eligible

for FMLA leave.62 VESSA has no such minimum hour requirement. Interpreted literally, a new

employee, on the job for less than a week, is entitled to leave under VESSA. The FMLA also

excludes certain federal employees from coverage under the act as well as certain highly

compensated employees.63 VESSA contains no such exclusions and may encompass all

employees employed in Illinois, whether employed by a government agency or private employer.

         Like FMLA, which permits an employee to take paid leave while on FMLA leave,

VESSA also permits an employee to substitute a period of paid leave for an equivalent period of

unpaid leave provided under the Act.64 However, unlike FMLA leave which permits an

employer to require that paid leave be exhausted in conjunction with FMLA leave,65 VESSA

leaves this choice up to the employee alone. Conceivably, an employee could elect to take 12

weeks of job-protected VESSA leave and then take any accrued sick leave or vacation leave on

top of the leave already taken, thus exceeding the 12 week maximum period of protected leave.

Recall that VESSA states only that the 12 week period of protected coverage shall not be in

60
   820 ILCS 180/10(10)(B)(A) (2003).
61
   820 ILCS 180/10 (2003). “Employ” includes to suffer or permit to work. 820 ILCS 180/10(8) (2003).
“Employee” includes a participant in a work assignment as a condition of receipt of federal or State income based
public assistance. 820 ILCS 180/10(9)(B)(A) (2003).
62
   29 U.S.C.S. §2611(2) (Lexis 2004).
63
   29 U.S.C.S. §2611(2)(B) and 29 U.S.C.S. §2614(b) (2004). Highly compensated employees may be denied
restoration to their position under the act if the denial is necessary to prevent substantial and grievous economic
injury to the employer, the employer notifies the employee of the intent to deny restoration and the employee elects
not to return to work after receiving notification. Highly compensated employees under FMLA are generally the
highest paid ten percent of employees.
64
   820 ILCS 180/25 (2003).
65
   26 U.S.C.S. 2612(d) (Lexis 2004).


                                                         13
addition to any leave provided under FMLA, not paid leave provided as an employee benefit by

the employer.66

        Where the need for leave is foreseeable to the employee, FMLA requires that the

employee provide at least thirty (30) days notice of the request for leave.67 VESSA only requires

48-hours notice. FMLA also provides for much stricter notice requirements for leave. The U.S.

Department of Labor has issued model certification notices to be completed by employees

requesting FMLA leave. (Exhibit B) The notice must include the date on which the serious

health condition commenced, the probable duration of the condition, medical facts within the

knowledge of the health care provider regarding the condition, and information specific to the

type of leave requested under the FMLA.68 VESSA’s certification is definitely less fact specific

and does not provide the employer with any indication of the duration of the leave requested.

More importantly, however, FMLA, unlike VESSA, provides the employer with an opportunity

to obtain second and third opinions as to the employee’s need for leave where the employer has

reason to doubt the validity of the certification.69 The broad certification requirements (sworn

statement by employee) of VESSA coupled with the inability of the employer to obtain

independent second opinions as to the necessity of the requested leave will certainly leave

VESSA open to abuse by employees.

        C.       Comparison to ADA

        VESSA mirrors the main provisions of the ADA’s employment anti-discrimination and

reasonable accommodation protections. The major difference textually between the acts is that


66
   See 27 supra.
67
   26 U.S.C.S. §2612(e) (Lexis 2004).
68
   26 U.S.C.S. §2613(b) (Lexis 2004).
69
   26 U.S.C.S §2613(c) and (d) (Lexis 2004). An employer may request an employee undergo a second,
independent medical exam, paid for by the employer. Where the second medical opinion conflicts with the
certification, a third medical exam may be requested by the employer. The opinion of this third physician is
considered final and is binding on the employee and employer.


                                                        14
ADA applies to disability and VESSA applies to domestic violence victims. The ADA applies to

employers who employ fifteen or more employees, whereas VESSA applies to employers with

fifty or more employees.70 The ADA includes accessibility provisions applicable to businesses

that serve the public. VESSA’s provisions are limited to the workplace environment.

Additionally, the ADA provides an exception for government employees, employees of

corporations wholly owned by the government, Indian tribes and bona fide private membership

clubs.71 As discussed above, VESSA provides no such employer exclusions.

        Under the ADA, “reasonable accommodation” includes making existing facilities readily

accessible to people with disabilities, job restructuring, modified or part time work schedule,

reassignment to vacant positions, acquisition or modification of equipment or devices,

adjustment or modification of examinations, training materials, or policies, provision of readers

or interpreters or other similar accommodations for people with disabilities.72

        Obviously, due to the vast difference between people with disabilities and people who are

victims of domestic violence, VESSA’s reasonable accommodations include the ADA

reasonable accommodations plus additional suggested accommodations such as a changed

telephone number or seating assignment, installation of a lock, implementation of safety

procedures and transfers to other employer locations.73

        VESSA specifically provides that “leave” may be a form of reasonable accommodation.74

However, the law is unclear as to whether this is the VESSA leave itself, or additional leave. In

the context of ADA reasonable accommodation, courts have affirmed the EEOC’s interpretation

of the ADA that the granting of leave under an employer’s own leave policy or under the federal

70
   42 U.S.C.S. §12101(5)(A) (Lexis 2004).
71
   42 U.S.C.S. §12101(5)(B) (Lexis 2004).
72
   42 U.S.C.S. §12101(9) (Lexis 2004).
73
   820 IlCS 120/30(3) (2004).
74
   Id.


                                                15
FMLA may fulfill the reasonable accommodation requirement under the ADA. “Permitting the

use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation.”75 An

employer may utilize a leave of absence to allow a disabled individual time to obtain medical

treatment or recuperate from an illness.76 Arguably, if the ADA is a model for the anti-

discrimination provisions of VESSA, leave granted under VESSA may in and of itself relieve the

employer of the burden of providing additional accommodations unless those accommodations

are reasonable. Certainly, this is another area of VESSA that may need further guidance from

the Illinois Department of Labor and the courts.

        The ADA also provides employers with a defense to charges of discrimination where the

employer can show that the selection criteria to screen out or deny a job or benefit to a disabled

individual is shown to be job related and consistent with business necessity.77 VESSA contains

no comparable defense for employers.

        E.       Compliance and Enforcement

        VESSA has charged the Illinois Department of Labor (the “Department”) with

enforcement of the statute.78 Any employee or representative of an employee who believes their

rights have been violated under the Act may file a complaint with the Illinois Department of

Labor within three (3) years from the date the alleged violation occurred.79 The Illinois

Department of Labor proposed and published regulations for VESSA on December 29, 2003.80




75
   29 C.F.R. 1630 app. §1630.2(o), See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,65 (1986) (holding that
EEOC guidelines constitute a body of experience and informed judgment to which courts and litigants may rely).
76
   29 C.F.R. 1630 app. §1630.2(o).
77
   42 U.S.C.S. §103(a) (Lexis 2004).
78
   820 ILCS 180/35(a) (2003).
79
   Id.
80
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.500.


                                                       16
        The regulations clarify that women and men have equal protection under the act.81 This

is an important clarification as domestic violence is not limited to women. As employers have

seen with sexual harassment in the workplace, violence and sexual assault may take the form of

male on female, female on male, female on female and male on male. The regulations

specifically exclude independent contractors from coverage under the act.82 The definition of

independent contractor under VESSA is the same definition used by the Illinois Unemployment

Insurance Act to define independent contractor for purposes of employer liability for

unemployment contribution rates.83

        The Department of Labor has not issued a recommended VESSA Certification form for

employers use.

        The Department of Labor has created a mandatory complaint form to report violations of

the Act to the Department. (Exhibit C). Complaints must be filed on this form or the complaint

will not be accepted by the Department. The forms must be signed by the party charging a

violation.84

        Unlike complaints filed under the Wage and Hour Collection Act, the VESSA regulations

provide that a complainant cannot have confidentiality. If a VESSA complainant requests

confidentiality, the Department must advise the complainant of the need to reveal their identity

in order to conduct an investigation and then give the complainant an opportunity to withdraw




81
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.120(a).
82
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.130. The definition of “independent contractor” under the IDOL regulations is identical to the
definition of independent contractor provided in the Illinois Unemployment Insurance Act.
83
   820 ILCS 405/212 (2004).
84
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.210.


                                                        17
their complaint.85 This is problematic due to the very sensitive nature of domestic violence and

the employee’s overriding concerns about job security. Given the lack of confidentiality in the

enforcement scheme, it is questionable how many individuals will actually file charges against

their employer for violations of the act.

        Incomplete complaints may be docketed with the missing information requested and

supplied within thirty days and the complainant may be amended prior to a determination to

correct technical defects, set forth additional allegations that could have been filed separately, to

substitute or name additional respondents and to add additional issues.86 Amendments relate

back to the date of the original complaint.87

        If the Department determines that the complaint is sufficient to state a cause of action

under the Act and the Department has jurisdiction over the matter, the Department will serve

each respondent with a copy of the complaint.88 Each respondent must submit a written response

to the Department within twenty-one (21) days after the Department issued the complaint.89 The

complainant then has twenty-one (21) days to submit a rebuttal to the Department of Labor.90

While the parties are responding to complaints, the Department of Labor may conduct its own

investigation as to the facts presented. Investigations may be in person or by phone, include field

visits or request for information, or be comprised of an informal conference where both parties

are able to present evidence.91 At the conclusion of the investigation, the Department must find


85
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.280.220.
86
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.240.
87
   Id.
88
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.310.
89
   Id.
90
   Id.
91
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.400. Parties must be given advance notice of at least ten days before an informal conference may


                                                        18
either: (a) there is reasonable cause that a violation of the Act has occurred; (b) there is no

reasonable cause that a violation of the Act has occurred; or (3) a party has failed to cooperate in

the investigation.92 Where the Department has found reasonable cause exists to support a

violation of the Act, the Department of Labor may seek a Consent Order executed by all parties

abating the unlawful practice and providing relief to the complainant.93

        Relief under VESSA include (a) damages equal to the amount of wages, salary, employee

benefits, public assistance or other compensation lost due to the violation of the act; (b)

appropriate equitable relief including hiring, reinstatement, promotion and reasonable

accommodations; and (c) reasonable attorneys’ fees, expert witness fees and other costs of the

action.94 The award of attorneys’ fees may actually keep VESSA complaints out of the

Department of Labor and in the court system in the hopes of a greater recovery through a more

protracted system. The FMLA provides similar remedies, although the FMLA also permits

recovery of liquidated damages, to which VESSA is silent.95

        The Department of Labor is not the only enforcement mechanism available to employees

who feel that their rights have been violated under the Act. Employees may file suit in federal or

state court to enforce their rights under the act. Where a state or federal court claim is pending,

the Department of Labor may dismiss any administrative complaint against the same employer. 96




be held. No tape recordings, stenographic report or other verbatim record of an informal conference may be made.
Telephone conferences may be granted with six days notice to each party.
92
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.410.
93
   Id.
94
   820 ILCS 180/35(a)(1) (2003).
95
   Id.
96
   Illinois Register, Department of Labor, Notice of Adopted Rules, Part 280, Victims’ Economic Security and
Safety Act, §280.320.


                                                       19
        E.       Implementation Issues for Employers

        1.       Coordination with FMLA

        VESSA specifically states that the act is not intended to create leave rights that go

beyond that already permitted under FMLA. However, as identified above, there are several

areas where FMLA and VESSA conflict – eligibility period, minimum hours requirement, where

two spouses work for the same employer and household numbers, to name the most critical. It is

unclear how employers will be able to reconcile these differences in a manner that will grant

employees rights under VESSA in a manner that will be equitable to all employees.

        2.       Duration of Leave

        Although the statute clearly states that VESSA does not create a right for an employee to

take unpaid leave under VESSA that exceeds or is in addition to the 12 weeks of leave permitted

under FMLA, there has been some debate and this is certainly a gray area that may require

further clarification from the legislature, Department of Labor or the courts.97 Where an

employee has already taken a portion of their 12-week allotment of FMLA leave in a 12-month

period and then requests additional leave under VESSA, it should be fairly easy for the employer

to calculate the amount of leave that the employee has remaining for the 12-month period and to

advise the employee thereof. Of greater concern is the situation where an employee has

exhausted some or all of their 12-week leave allotment under VESSA and then requests

additional leave under FMLA leave. There is certainly a potential conflicts of law and

preemption question present in such a situation.



97
  820 ILCS 180/20(a)(2) (2003). During a recent seminar presentation, attorney Greg Andrews of Andrews
Koehler & Passarelli, P.C. was asked by an attendee to clarify this section. This attendee had been told by her
employment law counsel that VESSA may be granted to employees in addition to leave granted for FMLA. Mr.
Andrews explained that the consensus is that while VESSA permits leave in circumstances that are different than
FMLA, the strict reading of the statute does not require an employer to grant more than 12 weeks of job-protected
unpaid leave in any 12-month period to an employee, regardless of the purpose for the leave request.


                                                        20
        3.       Recordkeeping

        Recordkeeping will likely be difficult, especially when employees take intermittent leave

under VESSA and under FMLA. A 2000 United States Department of Labor study on FMLA

found that 42.9% of employers had difficulty coordinating FMLA with other federal laws.98

40.1% of respondents reported difficulty coordinating FMLA leave with other leave policies and

34.5% of employers had difficulty coordinating FMLA leave with their own internal leave

policies.99 With VESSA, Illinois employers will have another FMLA coordination issue. For

employers with multi-state operations, coordination of FMLA with the various state domestic

violence leave policies may become extremely difficult.

        4.       Notice

        Unlike FMLA, which may be interpreted to require an employer to anticipate an

employee’s need for FMLA protection (for example when an employee calls in sick), VESSA

has an affirmative notice requirement, thus relieving some employer responsibility. However,

the lack of the employer’s ability to get a second opinion puts the employer in a very risk

position if the employer doubts the necessity of a VESSA leave.

        5.       Utilization

        According to the U.S. Department of Labor, 42% of employees learned of FMLA from

media and television outlets.100 Another 38.4% of employees learned of their rights under

FMLA directly from the employer.101 Clearly, this indicates that publicity of the law direct to

the public and to employers is paramount in achieving its utilization and success. To date, it

seems that Illinois’s VESSA has been lacking in the publicity area, resulting in both employer


98
   Department of Labor Survey on the Family and Medical Leave Act of 1993, October 29, 2004.
99
   Id.
100
    Department of Labor Survey on the Family and Medical Leave Act of 1993, October 29, 2004.
101
    Id.


                                                      21
and employee lack of knowledge of the law and underutilization of its many protections. As

described herein, a major publicity drive did not occur in Illinois until a year after the Act was

passed.

          Even with publicity, use of the protections under VESSA is questionable. While

domestic violence impacts all ages, nationalities, sexes, and socioeconomic levels, its impact is

most often felt at minority and lower income individuals. If utilization of FMLA is any

indication of utilization of VESSA, those who need the leave the most will not be able to afford

to take it.102 In fact, 77.6% of eligible employees who needed to take FMLA leave could not do

so because they could not afford it.103 Of this 77.6% of need takers, 87.8% indicated they would

have taken FMLA leave if some form of pay continuation had been available.104 Thus, there is a

direct correlation between utilization and salary reimbursement.

          Greater utilization may occur if Illinois extends unemployment benefits to employees on

VESSA leave. The Illinois Unemployment Insurance Act already provides that an individual

who voluntarily leaves work due to circumstances resulting from the individual’s being a victim

of domestic violence and who made reasonable efforts to preserve the employment shall not be

disqualified from receiving unemployment benefits.105 The employee must provide notice to

their employer of their reason for termination and to the Illinois Department of Employment

Security along with documentation of the domestic violence such as a protective order, medical

records, police report, or statements from a counselor, shelter worker or health worker.106

Twenty-six other states have enacted similar laws granting unemployment benefits to victims of

102
    According to the Department of Labor FMLA Survey, in 2000 leave-needers are more likely to be separated,
divorced or widowed, are more likely to have children living at home, and are more likely to be hourly employees
rather than salaried employees.
103
    Department of Labor Survey on the Family and Medical Leave Act of 1993, October 29, 2004. This 2000 figure
represented a 12% increase in financial inability to take leave from 1995.
104
    Id.
105
    820 ILCS 405/601 (2004).
106
    Id.


                                                       22
domestic violence.107 Twelve additional states have proposals on the books to grant such

unemployment compensation rights to victims of domestic violence.108 However, FMLA and

VESSA contemplate that a person on this form of job protected leave remains “active at work”

and thus not eligible for unemployment benefits. Additionally, if unemployment benefits are

extended to employees on VESSA leave, arguably, the same benefit should be provided to

employees on other types of federally provided or employer provided leave programs. This

could have a significant impact on the fiscal stability of the unemployment system.

        6.      Premium Recovery

        The economic impact of unpaid leave will also have an impact on the employer’s ability

to recover health insurance premiums in the event an employee who does take leave does not

return to work and is not exempted from reimbursement of health premiums under the act.

According to the U.S. Department of Labor, 46% of employers were unable to recover premiums

due when employees did not return to work.109 The premium continuation issue and reasonable

accommodation provisions of VESSA may have the greatest financial impact on employers.

IV.     LEGAL REVIEW

        Although domestic violence rights laws have been in existence since 2001, there is a

surprising dearth of case law related to any of these laws. As of this writing, there were no

reported cases challenging domestic violence leave acts anywhere in the nation. This may be a

result of a lack of information about the protections of the laws on a state-by-state basis or a

result of the extremely varied approaches the states that have enacted laws have taken to address

protections for victims of domestic violence.



107
    Legal Momentum, Unemployment Insurance, found at www.legalmomentum.org/issues/vio/FactsheetPage.shtml.
108
    Id.
109
    Department of Labor Survey on the Family and Medical Leave Act of 1993, October 29, 2004.


                                                   23
        A.       Domestic Violence Leave Laws

        Illinois is not the first jurisdiction to pass a law granting employment rights to victims of

domestic violence. State, county and municipal governments have enacted domestic violence

victim protection laws of varying degrees. The variety of laws is astounding. Some laws are

extremely generous and broad, much like VESSA. Others are more restrictive and provide many

more protections for employers, than the employees who need coverage. Comparatively,

Illinois’ law is the most comprehensive domestic violence employment law as far as providing a

general prohibition against employment discrimination against victims of domestic violence.

        California prohibits employers from discharging, discriminating or retaliating against an

employee who is a victim of domestic violence from taking time off to obtain judicial relief to

help ensure his/her health, safety or welfare or that of his/her child.110 Like VESSA, the act

requires reasonable notice and an employer may require an employee to provide certification of

the need for leave.111 California employers with twenty-five (25) or more employees may not

discriminate or retaliate against an employee who is victim of domestic violence for taking time

off to seek medical attention, obtain services from a domestic violence shelter or program, obtain

psychological counseling, participate in safety planning or relocate.112 Unlike VESSA, the

California act does not prescribe a time limit for coverage under the law.

        Colorado requires employers who employ 50 or more employees to grant employees who

have worked for the employer for at least twelve months and are victims of a domestic violence-

related crime to take up to three days of leave to seek a restraining order, obtain medical care or

counseling, locate safe housing or make her home secure, seek legal assistance and prepare for or



110
    Cal. Lab. Code §§230 and 230.1 (2002).
111
    Id.
112
    Id.


                                                 24
attend court-related proceedings.113 Before requesting leave under the Colorado act, the

employee must have exhausted any and all annual leave, including vacation leave, personal leave

or sick leave unless the employer waives this requirement and the employee may be required to

provide supporting documentation to the employer.114

        Maine broadly requires employers to grant “reasonable and necessary” leave when an

employee, child, parent or spouse of the employee is a victim of domestic violence, violence or

assault, to prepare for and attend court proceedings, receive medical treatment, and/or to obtain

services to remedy a crisis.115 An employer may be exempt under the act if compliance would

sustain undue hardship, if the request was not made within a reasonable time, or is unnecessary

under the facts made known to the employer.116

        Hawaii allows an employee to take leave for a reasonable period of time, up to thirty (30)

days per calendar year if the employer has fifty or more employees or up to five (5) days for

small employers, if the employee or a household member is a victim of domestic violence or

stalking provided the leave is to seek medical attention, obtain victim services, obtain

counseling, relocate or take legal action.117 No certification is required unless the leave is for

longer than five days.118 Reasonable notice to the employer is required and the employee must

exhaust all other paid and unpaid leave before the leave under this act may apply.119

        North Carolina prohibits employers from discharging, demoting, disciplining or denying

a promotion to an employee who takes reasonable time off from work to obtain relief under the




113
    Colo. Rev. Stat. §24-34-402.7 (2002).
114
    Id.
115
    26 ME. Rev. Stat. §850 (2002).
116
    Id.
117
    Hawaii Rev. Stat. §378-72 (Lexis 2004).
118
    Id.
119
    Id.


                                                 25
state’s domestic violence law.120 Employees must follow the employer’s usual time-off policy or

practices.121

        Maryland broadly prohibits unfair treatment of state employees based solely on their

status as victims of domestic violence.122 This executive order has not been legislatively

codified to extend to private employers.

        Thirty two (32) states have enacted laws that grant employees who are victims of a crime

job protection in the form of time off or anti-discrimination to respond to subpoenas to testify in

criminal proceedings, participate in preparation for criminal proceedings, consult with district

attorneys, and the like.123 The statutes vary as to whether leave is paid or unpaid. For example,

New York prohibits an employer from discharging or penalizing a victim of a crime who takes

time off to appear in court as a witness or consult with a district attorney or obtain an order of

protection.124 The Arizona statute requires employers of more than fifteen (15) people to allow

an employee who is a victim of a crime to leave work to be present at court proceedings or attend

up to twelve (12) hours of counseling.125 The employee provided documentation before leaving

work.126 The requirement may be waived where the leave would cause the employer an undue

hardship.127


120
    N.C. Gen. Stat. chap. 50-B-5.5 (2004).
121
    Id.
122
    Md. Exec. Order No. 01.01.1998.25 (1998).
123
    See Ala. Code §15-23-81; Alaska Stat. §12.61-017; Ariz. Rev. Stat. §13-4439; Ark. Code. Ann. §16-90-1105;
Colo. Rev. Stat. §24-4.1-303(8); Conn. Gen. Stat. §54-85b; Del. Code Ann. Tit. 11 §9409; Flas. Stat. §92.57; Ga.
Code Ann. §34-1-3; Haw. Rev. Stat. §621-10.5; Ind. Code 35-44-3-11.1
Iowa Code §915.23; Md. Code Ann. Cts. & Jud. Proc. §9-205; Mass. Gen. Laws Ch. 258B, §3(1) and §268-14(b);
Mich. Comp. Laws §780.762 and §780.790; Minn. Stat. Ann. §611A.036; Miss. Code Ann. §99-43-45; Rev. Stat.
Mo. §595.209(1)(14); Mont. Code Ann., §46-24-205(3); Nev. Rev. Stat. §50.070 (2003); N.D. Cent. Code §27-
019.1-17; Ohio Rev. Code Ann. §2930.18; 18 Pa. Code §4957; R.I. Gen. Laws §12-28-10; S.C. Code Ann. §4-4-
122; Utah Code §78-11-26; 13 Vt. Stat. Ann. §5313; Va. Code Ann. §18.2-465.1; Wyo. Stat. Ann. §1-40-209(a);
Wis. Stat. §103.87.
124
    N.Y. Penal Law §215.14 (Lexis 2004).
125
    Arizona S.B. 1552 (2001)
126
    Id.
127
    Id.


                                                       26
        A number of states have had legislative proposals in committee for several years

regarding employment rights for victims of domestic violence. Kentucky has been attempting to

pass a domestic leave act almost identical to that provided in California since 2001. Most

recently, the bill was introduced and passed the Kentucky House in 2003.128

        Mississippi has proposed a law which will require employers to grant reasonable and

necessary leave from work, with or without pay, for an employee who is victim of domestic

violence to prepare for and attend court proceeding, receive medical treatment or obtain services

to remedy a crisis.129 The employer has discretion not to grant leave if it would cause an undue

hardship to the employer.130 The legislative proposal has been in committee since 2002.131

        On June 6, 2004, the Pennsylvania house passed a bill which will entitle “eligible

employees” (as defined by the federal Family and Medical Leave Act) to thirty (30) days leave

during any 12 month period for medical treatment, legal proceedings and relocation related to

domestic violence.132 Employees must give ten (10) days notice or whatever notice is

practicable and must make an effort to schedule appointments so as not to unduly disrupt the

operations of the employer.133 Like VESSA, the employer is required to continue the

employee’s health benefits during leave and to restore the employee to the same or equivalent

position at the end of the leave.134 The bill has been referred to the Pennsylvania Senate.

        In Washington, the legislature has been debating a proposal requiring an employer to

grant employees up to six (6) weeks of leave during any 12-month period, with or without pay,

for an employee to prepare for and attend court proceedings, receive medical treatment or obtain


128
    Kentucky H.B. 171 (2003).
129
    Mississippi H.B. 739 (2002).
130
    Id.
131
    Id.
132
    Pennsylvania H.B. 24 (2001).
133
    Id.
134
    Id.


                                                27
other necessary services caused by domestic violence of the employee or the employee has a

family member who has been the victim of homicide or sexual abuse.135 The employer need not

grant leave if it would cause the employer undue hardship or if the criminal act has not been

reported to local law enforcement.136 Health benefits must be provided to the employee during

the leave.137 The bill has been in committee since 2001 but has not been withdrawn.

        B.       Domestic Violence Anti-Discrimination Laws

        State anti-discrimination laws tend to be broader laws intended to protect victims of

crime, generally rather than to provide specific protections to victims of domestic violence.

Alaska, Connecticut, Delaware, Missouri, New York and North Carolina prevent employers

from penalizing, discriminating, discharging or retaliating against employees who are victims of

a crime and who are subpoenaed to testify, requested to provide assistance to a criminal

investigation, or participate in other legal proceedings.138

        Like VESSA, California’s domestic violence law incorporates anti-discrimination

provisions and relates to victims of domestic violence, specifically.139

        Arizona limits the applicability of its anti-discrimination law to employers with fifty (50)

or more employees.140 Rhode Island prohibits discrimination against employees who seek to

obtain a protective order or refuse to obtain a protective order.141




135
    Washington S.B. 5329 (2001).
136
    Id.
137
    Id.
138
    Alaska Stat. §12.61-017; Conn. Gen. Stat. §54-85b; Del. Code Ann. Tit. 11 §9409; Rev. Stat. Mo.
§595.209(1)(14); N.Y. Penal Law §215.14; N.C. Gen. Stat. §95.241(a).
139
    Cal. Lab. Code §230 and 230.
140
    Ariz. Rev. Stat. §13-4439.
141
    R.I. Gen. Laws §12-28-10.


                                                       28
V.      CONCLUSION

        In terms of acknowledgement of the problem of domestic violence in Illinois, VESSA is

an important first step. However, like any new law, VESSA is not without its flaws. In terms of

curbing domestic violence, VESSA will likely have little initial impact. With time, as victims of

domestic violence become more empowered to address domestic violence situations through

employment protection, VESSA may have an impact. However, it is likely that such a result is

far off into the future. After 11 years of FMLA coverage, about 80% of employers indicated that

FMLA had little to no impact on business productivity, profitability and growth (some of the

purposes of the act.)142

        In terms of providing greater protections for Illinois employees, VESSA of course, has an

immediate impact as the law impacts the majority of employers within the state, with the only

exception being small employers. Whether or not the federal government, as an Illinois

employer, will honor the law is questionable.

        VESSA’s long-term success for victims of domestic violence and for stability in the

workplace depends upon utilization and enforcement of the act. The lack of publicity and

employer/employee knowledge of the act, to date, has certainly had a negative impact on

utilization. However, with time, utilization should improve. The lack of confidentiality for

employees under the enforcement provisions may have the greatest negative impact upon

utilization and enforcement of the law.

        There are many gray areas of the law and coordination issues that will either be addressed

by the Illinois Department of Labor in its enforcement of the Act or by the courts as employers




142
  Sweeney, Kevin, Studies yield conflicting views on FMLA success, February 1, 2001, Employee Benefit News.
www.benefitnews.com/subscriber/01_03/cover2.htm.


                                                     29
challenge the Act. Legal challenges will certainly have an economic impact upon employers and

employees.

       For large and small employers alike, VESSA will have a significant impact on record

keeping and coordination with FMLA and individual employer leave policies. Coordination of

VESSA with FMLA is likely to be the most challenging aspect of the law. Although VESSA

itself states that leave granted under it is not to be in excess of FMLA, confusion will arise when

an employee requests both types of leave. While an Illinois employer who has already granted

12 weeks of FMLA leave will not violate VESSA by refusing to grant additional VESSA leave,

the opposite may not be true. An employee who initially requests and is granted 12 weeks of

VESSA leave may thereafter request 12 weeks of FMLA leave in the measuring period and the

employer may have to grant the additional 12 week leave. Since federal law preempts state law,

the failure to grant leave in such a situation could result in a violation of federal law.

       The addition of VESSA also results in another statute of limitations period for employers

to track and coordinate with their records retention policies. As mentioned earlier, an employee

may charge a VESSA violation up to three years after the violation occurred. FMLA is two

years and the ADA is 300 days.

       It is unfortunate that past attempts to amend FMLA to include protections for victims of

domestic violence have failed. It is encouraging that Illinois is addressing the serious issue of

domestic violence and trying to become a more “employee-friendly” state in terms of

employment law. However, VESSA may be more than anyone bargained for.




                                                  30

				
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