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Frequently Asked Questions

What is the difference between a resident alien and a nonresident alien for tax purposes?

For tax purposes, an alien is an individual who is not a U.S. citizen. Aliens are classified as resident aliens and nonresident aliens. Resident aliens are taxed on their worldwide income, the same as U.S. citizens. Nonresident aliens are taxed only on their U.S. source income.

What is the difference between the taxation of income that is effectively connected with a trade or business in the United States and income that is not effectively connected with a trade or business in the United States?

The difference between these two categories is that effectively connected income, after allowable deductions, is taxed at graduated rates. These are the same rates that apply to U.S. citizens and residents. Income that is not effectively connected is taxed at a flat 30% (or lower treaty) rate

I am a student with an F-1 Visa. I was told that I was an exempt individual. Does this mean I am exempt from paying U.S. tax?

The term "exempt individual" does not refer to someone exempt from U.S. tax. You were referred to as an exempt individual because as a student temporarily in the United States on an F Visa, you do not have to count the days you were present in the United States as a student during the first 5 years in determining if you are a resident alien under the substantial presence test.

I am a resident alien. Can I claim any treaty benefits?

Generally, you cannot claim tax treaty benefits as a resident alien. However, there are exceptions.

I am a nonresident alien with no dependents. I am working temporarily for a U.S. company. What return do I file?

You must file Form 1040NR if you are engaged in a trade or business in the United States, or have any other U.S. source income on which tax was not fully paid by the amount withheld. You can use Form 1040N R-EZ instead of Form 1040NR if you meet all 11 conditions listed under Form 1040NR-EZ in chapter 7.

I came to the United States on June 30th of last year. I have an H-1 B Visa. What is my tax status, resident alien or nonresident alien? What tax return do I file?

You were a dual-status alien last year. As a general rule, because you were in the United States for 183 days or more, you have met the substantial presence test and you are taxed as a resident. However, for the part of the year that you were not present in the United States, you are a nonresident. File Form 1040. Print "Dual-Status Return" across the top. Attach a statement showing your U.S. source income for the part of the year you were a nonresident. You may use Form 1040NR as the statement. Print "Dual-Status Statement" across the top.

When is my Form 1040NR due?

If you are an employee and you receive wages subject to U.S. income tax withholding, you must generally file by the 15th day of the 4th month after your tax year ends. If you file for the 2007 calendar year, your return is due April 15, 2008. If you are not an employee who receives wages subject to U.S. income tax withholding, you must file by the 15th day of the 6th month after your tax year ends. For the 2007 calendar year, file your return by June 16, 2008.

My spouse is a nonresident alien. Does he need a social security number?

A social security number (SSN) must be furnished on returns, statements, and other tax-related documents. If your spouse does not have and is not eligible to get an SSN, he must apply for an individual taxpayer identification number (ITIN). If you are a U.S. citizen or resident and you choose to treat your nonresident spouse as a resident and file a joint tax return, your nonresident spouse needs an SSN or an ITIN. Alien spouses who are claimed as exemptions or dependents are also required to furnish an SSN or an ITIN.

I am a nonresident alien. Can I file a joint return with my spouse?

Generally, you cannot file as married filing jointly if either spouse was a nonresident alien at any time during the tax year. However, nonresident aliens married to U.S. citizens or residents can choose to be treated as U.S. residents and file joint returns.

I have an H-1 B Visa and my husband has an F-1 Visa. We both lived in the United States all of last year and had income. What kind of form should we file? Do we file separate returns or a joint return?

Assuming both of you had these visas for all of last year, you are a resident alien. Your husband is a nonresident alien if he has not been in the United States as a student for more than 5 years. You and your husband can file a joint tax return on Form 1040, 1040A, or 1040EZ if he makes the choice to be treated as a resident for the entire year. If your husband does not make this choice, you must file a separate return on Form 1040 or Form 1040A. Your husband must file Form 1040NR or 1040NR-EZ. Is a "dual-resident taxpayer" the same as a "dual-status taxpayer"?' No. A dual-resident taxpayer is one who is a resident of both the United States and another country under each country's tax laws. You are a dual-status taxpayer when you are both a resident alien and a nonresident alien in the same year.

I am a nonresident alien and invested money in the U.S. stock market through a U.S. brokerage company. Are the dividends and the capital gains taxable? If yes, how are they taxed?

The following rules apply if the dividends and capital gains are not effectively connected with a U.S. trade or business. Capital gains are generally not taxable if you were in the United States for less than 183 days during the year. Dividends are generally taxed at a 30% (or lower treaty) rate. The brokerage company or payor of the dividends should withhold this tax at source. If tax is not withheld at the correct rate, you must file Form 1040NR to receive a refund or pay any additional tax due. If the capital gains and dividends are effectively connected with a U.S. trade or business, they are taxed according to the same rules and at the same rates that apply to U.S. citizens and residents.

I am a nonresident alien. I receive U.S. social security benefits. Are my benefits taxable?

If you are a nonresident alien, 85% of any U.S. social security benefits (and the equivalent portion of tier 1 railroad retirement benefits) you receive is subject to the flat 30% tax, unless exempt, or subject to a lower treaty rate.

Do I have to pay taxes on my scholarship?

If you are a nonresident alien and the scholarship is not from U.S. sources, it is not subject to U.S. tax. If your scholarship is from U.S. sources or you are a resident alien, your scholarship is subject to U.S. tax according to the following rules. • If you are a candidate for a degree, you may be able to exclude from your income the part of the scholarship you use to pay for tuition, fees, books,A supplies, and equipment required by the educational institution. However, the part of the scholarship you use to pay for other expenses, such as room and board, is taxable. If you are not a candidate for a degree, your scholarship is taxable.

I am a nonresident alien. Can I claim the standard deduction?

Nonresident aliens cannot claim the standard deduction.

I am a dual-status taxpayer. Can I claim the standard deduction?

You cannot claim the standard deduction allowed on Form 1040. However, you can itemize any allowable deductions.

I am filing Form 1040NR. Can I claim itemized deductions?

Nonresident aliens can claim some of the same itemized deductions that resident aliens can claim. However, nonresident aliens can claim itemized deductions only if they have income effectively connected with their U.S. trade or business.

I am not a U.S. citizen. What exemptions can I claim?

Publication 519 (2007) Resident aliens can claim personal exemptions and exemptions for dependents in the same way as U.S. citizens. However, nonresident aliens generally can claim only a personal exemption for themselves on their U.S. tax return. There are special rules for residents of Mexico, Canada, and the Republic of Korea (South Korea); for U.S. nationals; and for students and business apprentices from India.

What exemptions can I claim as a dual-status taxpayer?

As a dual-status taxpayer, you usually will be able to claim your own personal exemption. Subject to the general rules for qualification, you can claim exemptions for your spouse and dependents when you figure taxable income for the part of the year you are a resident alien. The amount you can claim for these exemptions is limited to your taxable income (figured before subtracting exemptions) for the part of the year you are a resident alien. You cannot use exemptions (other than your own) to reduce taxable income to less than zero for that period.

I am single with a dependent child. I was a dual-status alien in 2007. Can I claim the earned income credit on my 2007 tax return?

f you are a nonresident alien for any part of the year, you cannot claim the earned income credit.

l am a nonresident alien student. Can I claim an education credit on my Form 1040NR?

If you are a nonresident alien for any part of the year, you generally cannot claim the education credits. However, if you are married and choose to file a joint return with a U.S. citizen or resident spouse, you may be eligible for these credits.

I am a nonresident alien, temporarily working in the U.S. under a J visa. Am I subject to social security and Medicare taxes?

Generally, services you perform as a nonresident alien temporarily in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of section 101 (a)(15) of the Immigration and Nationality Act are not covered under the social security program if you perform the services to carry out the purpose for which you were admitted to the United States.

I am a nonresident alien student. Social security taxes were withheld from my pay in error. How do I get a refund of these taxes?

If social security or Medicare taxes were withheld in error from pay that is not subject to these taxes, contact the employer who withheld the taxes for a refund. If you are unable to get a full refund of the amount from your employer, file a claim for refund with the Internal Revenue Service on Form 843.

I am an alien who will be leaving the United States. What forms do I have to file before I leave?

Before leaving the United States, aliens generally must obtain a certificate of compliance. This document, also popularly known as the sailing permit or departure permit, is part of the income tax form you must file before leaving. You will receive a sailing or departure permit after filing a Form 1040-C or Form 2063.

I filed a Form 1040-C when I left the United States. Do I still have to file an annual U.S. tax return?

Form 1040-C is not an annual U.S. income tax return. If an income tax return is required by law, you must file that return even though you already filed a Form 1040-C.

Before you File a Charge - Sexual Harassment Checklist

Employee Sexual Harassment Case Questionnaire

Here is a list of questions that an employment attorney may ask during a sexual harassment consultation:

  • How long have you worked with this employer? 
  • Were you treated differently or harassed because of your sex? 
  • Describe in detail, dates, nature and particulars of each incident of sexual harassment or hostile work environment.
  • Describe in detail each sexually offensive comment, picture, e-mail or requests that you were subjected to.
  • Describe in detail each comment of a derogatory nature with particulars, dates and witnesses.
  • Position of the harasser. Is the harasser in supervisory position? Describe the job duties of the alleged harasser to determine his level of authority.
  • Did the sexual harassment include physical contact. If so, describe in detail each such conduct.
  • Names of each person who may have witnessed any of the sexual harassment.
  • Did you participate or encourage any of the misconduct?
  • Has this harasser sexually harassed other workers? Identify all other victims.
  • Were any members of management around to witness any of the sexual harassment?
  • Does your employer have a sex discrimination or sexual harassment policy and have you read it? 
  • Did you follow your employer's policy in reporting the sexual harassment and any other steps? 
  • Did you report the sexual harassment to your union? 
  • When you reported the sexual harassment to management, what action did they take, if any
  • Names of each person who was interviewed by management as a result of the sexual harassment complaint.
  • After you reported the sexual harassment to management, did the sexual harassment cease? 
  • Did management handle your sexual harassment complaint in an efficient and professional manner? 
  • Was anyone disciplined or transferred as a result of your complaint of sexual harassment?
  • After you reported sexual harassment to management, were you subjected to any form of retaliation or punishment for having complained? Describe in detail.
  • Did you suffer any financial losses as a result of the discrimination or sexual harassment? For example, lost wages, benefits, time at work, emotional distress, etc. 
  • Did you seek medical treatment or counseling as a result of the sexual harassment? Names of your physicians, counselors and therapists.
  • A list of your witnesses.
  • How is your work performance otherwise? 
  • How do you think that the matter should be resolved?

Sexual Harassment - Filing a Charge

A discrimination or harassment claim must begin by the filing of a charge of discrimination with an administrative agency such as the EEOC. In Illinois, the Illinois Department of Human Rights, Cook County Commission on Human Relations or the Chicago Commission on Human Relations. Some agencies require that a charge be filed in person while others permit employees to submit charges that were prepared outside of the agency. Some of the agencies accept walk-ins while others such as the EEOC require that an employee make an appointment to come in and complete the charge information.

 

In any event, within about 10 days after a charge is filed, the administrative agency sends a copy of the charge to the employer and asks the employer to submit a written response within a certain number of days. The agency would then begin an investigation of the allegations in the charge.

Where to File a Charge of Sexual Harassment

There are several factors to consider in determining where best to file a charge. These factors include the type of harassment, the length of time that the discrimination and harassment were ongoing, the date of the last incident of discrimination, the nature of damages incurred, and whether a jury trial is sought. In addition, one must consider the cost of litigating in the various courts and administrative agencies. Generally, the federal court is the most expensive forum whereas agencies such as the Chicago Commission on Human Relations are the least expensive.

The EEOC generally accepts charges that are filed within 300 days of the discrimination complained of. Most of the other agencies require that charges be filed 180 days from the discriminatory action. Charges that are filed with the EEOC are likely to be litigated in federal court. After investigation, the EEOC issues a right-to-sue letter which permits the litigant to file suit in federal court within 90 days of receiving the letter. Federal court litigation can be expensive because of the various required court filings fees. In addition, the rules permit expensive discovery methods such as depositions, witness subpoenas and other extensive written discovery. Federal cases are typically tried in front of a jury and the judges enforce strict deadlines on litigants. Federal law permits litigants to obtain a broader range of damages such as compensatory damages and punitive damages as well as backpay, reinstatement, lost benefits and other all damages that resulted from the discrimination. Punitive and compensatory damages are capped depending on the number of employees that the employer has. Title VII damages against the largest employer is capped at $300,000.

The other administrative agencies such as the Illinois Department of Human Rights, Cook County Commission on Human Relations and Chicago Commission on Human Relations require that charges be filed within 180 days of the discrimination. They also accept a broader range of discrimination cases than the EEOC such as discrimination based on sexual orientation, financial status, arrest record, parental status, and such others. Charges that are filed with these agencies are litigated in front an Administrative Law Judge. No jury trial is available.

The potential damages to be recovered are limited when compared to cases brought in federal court. Generally, punitive damages are not awarded by these agencies and awards for mental anguish can be limited. However, these agencies award a full range of backpay, reinstatement and reimbursements for any lost benefits.. The key advantage of these agencies lies in the fact that they cover a broader range of discrimination and that litigation costs are minimal. These agencies typically charge no filing fees and allow depositions only in special circumstances. Discovery tools are limited to interrogatories, requests to admit, and production requests. Cases that have high backpay damages with minimal claims of punitive and compensatory damages are well suited for these agencies. Cases with significant potential for compensatory and punitive damages potential that require a jury trial are best suited for federal court.

Sexual Harassment Mediation Conference

Before starting the investigation, most agencies attempt to resolve the charge through a mediation process. The mediation is an informal process during which the employee and the employer’s representative meet face-to-face with a mediator to attempt to settle the case. Mediators are generally not employees of the agencies. Instead, they are mostly retired judges, attorneys, and others professionals that are trained in alternative dispute resolution. The mediation process is voluntary and neither the employer or employee is required to settle the case. As there are no judges present in the mediation, the employer and employee generally determine the terms of the mediation and can reach whatever agreement that is acceptable to both sides.

The mediation process is confidential. As such, nothing that is stated during the mediation process can be used during the court proceedings or investigation of the case. The person who acts as the mediator has no role in the future investigation of the charge or in the lawsuit. As such, if mediation fails, the discussions held during the process do not have an impact on the ultimate determination of the case. Most mediators require that all participants sign a confidentiality agreement before the mediation begins. If a settlement is reached during the mediation, the terms of the agreement are generally summarized into a lengthy settlement agreement which the parties have to sign in order to complete the settlement.

Sexual Harassment Agency Investigation

If the case does not resolve through mediation, the agency where the charge was filed will assign the case to an investigator who will begin a formal investigation of the allegations in the charge. The investigator is not made aware of any facts that were discussed during the mediation conference. Mediators also do not act as investigators. This ensures that the individual investigating the case is not influenced by the mediation conduct of the parties.

Investigators use a variety of tools to determine whether the employer discriminated against or harassed the employee. They speak to co-workers, managers, and supervisors. They also request documents, obtain witness statements and interview company officials. In some cases, the investigator will issue subpoenas to obtain documents necessary to reach a decision. It is therefore important that the investigator be provided with names, addresses, and telephone numbers of all possible witnesses. It is equally important to provide the investigator with any important documents and other material that may help him determine whether the employer violated any laws. The investigator may also need the names and addresses of individuals who may have been treated in a similar manner and those that were treated differently in order to determine whether the Complainant (charging party) was the victim of discrimination.

Sometimes, an investigator will request a Complainant interview. During the interview, the investigator will ask the Complainant specific questions regarding the allegations in the charge to clarify any questions that exist. The investigator also uses this interview to obtain additional details regarding the allegations in the charge.

The investigation process lasts from approximately 6 months to 2 years or more depending on the agency. The investigator generally makes the parties aware of the current backlog of cases and an estimate of a possible completion date. Some agencies such as the EEOC allow employees to request a right-to-sue letter to take their case to federal court before the investigation is concluded. Once after a right-to-sue letter is issued, the EEOC terminates its investigation of the charge. It is a good idea to consult with an attorney to help decide whether to request a right-to-sue letter to go to federal court before the investigation concludes.

Sexual Harassment Administrative Conclusion

After the investigation is complete, the investigator prepares a report that summarizes the findings of the investigation and whether there is a reasonable basis to believe that the employer may have engaged in discrimination or harassment against the Complainant.

Sexual Harassment Conciliation

If the agency determines that there is a reasonable basis to believe that there has been a violation by the employer, it will attempt to resolve the case though a conciliation process which, like the mediation, is a voluntary process. The investigator attempts to settle the case to avoid the filing of a lawsuit. The conciliation process is much like the mediation process. If the case is resolved through conciliation, no lawsuit is filed and the employer and employer will prepare and sign a settlement agreement

Filing a Sexual Harassment Lawsuit

If no agreement is reached through conciliation, the EEOC will issue the Complainant a right-to-sue letter which requires that he or she file a federal lawsuit within 90 days of receiving the letter. In the case of the Illinois Department of Human Rights and other agencies, the charge is referred to an administrative law judge at the Illinois Human Rights Commission who will preside over the case and a hearing/trial.

Filing a Sexual Harassment Court Complaint

A lawsuit is started by the filing of a complaint with the clerk of the court. After the lawsuit is filed, the Defendant is sent a copy of the lawsuit and required to prepare a written response to be filed with the Court within a certain number of days (sometimes up to 90 days).

Once the lawsuit is filed, the Defendant may either file an answer responding to the allegations in the lawsuit or he may request that the judge dismiss the case. If the case is dismissed, the case would be over and the Plaintiff may appeal the dismissal. However, most cases are not dismissed at this early state of the litigation. Even though many Defendants file motions to dismiss, most of these motions are denied and the Defendant ultimately files an answer to the lawsuit.

SEXUAL HARASSMENT LAWSUIT - DISCOVERY

After an answer is filed, the parties begin a process referred to as discovery. Discovery refers to the exchange of information between the two sides of the case. The aim of discovery is for each side to understand what the other side is claiming and all witnesses, documents and evidence that may support the others’ case. Both sides are required to comply with discovery requests and be entirely forthcoming with the other side. To ensure this outcome, judges may prevent one side from using evidence that it hid from his opponent during discovery. For example, if one party conceals the identity or location of a favorable witness, the judge may not let him use that witness at trial as punishment for hiding that witness’ identify or location from the other side.

Sexual harassment discovery takes various forms:

Interrogatories: These are detailed written questions that one side sends to the other to answer in writing with a certain number of days. These are generally used to obtain names and addresses of important witnesses, nature and amount of damages, and the types of damages sought and defenses raised. Document Production Requests/Notice to Produce: These refer to a written list of documents and things such as software, and such that one side requests that the other side provide. These are used to obtain personnel files, policies and procedures, software, e-mails, and handbooks. Depositions: During depositions, lawyers ask questions of witnesses who have to answer under oath. A court reporter or videographer records all of the questions and answers. While one lawyer asks questions, the opposing lawyer would typically make objections to some of the questions. Even though lawyers object to the questions, the witnesses are required to answer the questions unless specifically instructed not to answer. Any objections made are for the record and will be ruled upon by a judge at a later time if the case proceeds to trial

 

Requests to Admit: These are questions that request "yes" or "no" answers. If the person on whom the request is served fails to respond within the allotted time, he is assumed to have admitted all of the requests.

Even though lawyers for the different sides do not always get along, the are required to cooperate and work with each other to resolve any discovery differences or disputes. If the disputes cannot be resolved by the lawyers, the party who believes that the other is not providing adequate responses to discovery can file a motion to compel answers to discovery questions. Before filing the motion, the lawyer must satisfy the judge that he made a diligent effort to work out his differences with the opposing lawyer. The judge will hear both sides and determine whether the questions are proper and should be answered. Judges may impose a financial or other sanction against any party who fails to cooperate with the other in discovery or conceals information from the other. The discovery process takes approximately 6 to 9 months to complete.

Sexual Harassment Lawsuit - Summary Judgement Motion

After discovery is complete, the Defendant may file a motion for summary judgment. This motion asks the Court to dismiss the case on the basis that Plaintiff does not have a case that can be won in front of a jury. Many Defendants bring this motion regardless of the strength of the Plaintiff’s case with the hope that the case does not get to a jury. In determining whether summary judgment should be granted to the Defendant, the judge will review deposition testimony, the employer’s policies, testimony of witnesses, and written submissions by the lawyers. In reviewing the evidence, the judge will try to determine whether the Plaintiff, if believed, can win the case if permitted to take the case to a jury trial. If the judge determines that the Plaintiff will not win, he will dismiss the case. If not, he will deny Defendant’s motion for summary judgment and set the case for trial. The summary judgment process takes approximately 3 to 6 months, sometimes longer depending on the judge’s case load.

Sexual Harassment - Trial

A case will proceed to trial if the case is not dismissed by the judge and Defendant’s motion for summary judgment is denied. If the case is in federal court and a jury is requested, the judge will set it for a jury trial. For cases filed at the other administrative agencies other than the EEOC, the case will be heard by an Administrative Law Judge with no jury.

Plaintiff is expected to be present each day of trial or hearing. Trial begins with jury selection. The judge and lawyers would interview a pool of potential jurors and the selection process will end with a jury of 6 to 12 persons impaneled. After jury selection, the case begins with the Plaintiff making his opening statements after which the Defendant makes an opening statement. Following opening statements, the Plaintiff will call his witnesses and the Plaintiff’s lawyers will question each of them. After each witness is questioned by the Plaintiff’s lawyer, the lawyer for the Defendant will cross-examine that witness. Th next witness for the plaintiff will then be called. The Plaintiff also testifies at length and is usually subjected to cross-examination by the Defendant’s lawyer. After the Plaintiff calls all of his witnesses, he will then rest his case. Defendant will typically move for a directed finding after Plaintiff’s case. If the motion is denied, the defendant will begin to call its own witnesses to be questioned by its lawyers and cross-examined by the Plaintiff’s lawyer.

After all the witnesses testify, the Defendant would typically again ask the judge to enter a directed finding. This basically request that the judge dismiss the case and not let the jury deliberate and reach a verdict. If the judge grants the motion, the case will be dismissed and the jurors will be released and the case would be over. If the judge denies the motion and lets the case proceed, each side is permitted to make a closing argument to the jury. The closing argument is designed to explain the evidence to the jury and emphasize important aspects of each side’s testimony and evidence.

After closing arguments, the jury is taken to the jury room to deliberate and reach a verdict. The lawyers and parties are required to be close to the court house and to return within a short time in the event the jury has a question or has reached a verdict. When the judge is informed that the jury has reached a verdict, he summons the lawyers and the parties to the court house. Once in the court house, the foreman of the jury will read the verdict and announce the winner and the amount of the award. A typical jury trial for employment cases lasts 3-7 days.

Sexual Harassment Appeal

After the jury reaches a verdict, a judge may enter the amount of the verdict as a judgment against the losing side. A judge may also overturn the ruling of the jury or reduce the jury award if he determines that justice so requires. After a judgment is entered, either side may appeal the judgment including the jury verdict. There are strict time limits that are enforced with the filing of appeals. It is thus important to be aware of the deadline to file an appeal and be certain to file the notice of appeal and pay the appropriate Court fees timely in order not to lose the right to appeal. An appeal takes approximately 1 to 2 years to complete.

Sexual Harassment Lawsuit - Settlement or Court Order

The vast majority of cases settle sometime before trial. Some even settle after trial. Whether a case settles is generally dependent on how realistic each side evaluates the strengths and weaknesses of its case. Settlements are reached more often when both sides make a full and frank assessment of the strengths and weaknesses of the case. The cases that do not settle result mostly from a disagreement or misunderstanding of the strength or weaknesses of their case or their opponent’s case.

Most cases will settle if both sides evaluate the case dispassionately and objectively. Whether a case settles also depends on how much the Plaintiff is seeking. The larger the sum, the lengthier the negotiations will likely be. Settlements generally leave each side somewhat dissatisfied because neither side typically gets what they want. Instead, each side compromises and leaves with less than a total victory over their opponent. If the case goes to trial, one side wins and the other side loses.

SEXUAL HARASSMENT CASE - SETTLEMENT/TRIAL MONETARY VALUE

The value of each case is different and depends on the type of discrimination suffered, lost pay and benefits, the length of time that the Plaintiff endured discrimination or harassment, the severity of the discriminatory conduct, and the employer’s response to Plaintiff’s complaints of discrimination and harassment. The value of a case requires a detailed summation of all losses incurred by the employee such as: lost pay, lost overtime pay, lost benefits, job search expenses, COBRA payments made due to loss of work, medical bills, judgments entered against employee as a result of inability to pay bills, and raises lost due to loss of employment.

In determining the amount of mental anguish damages to request, it is important to determine to what extent that the employee sought psychological counseling or treatment and the length of such. In addition to the damages identified above, a Plaintiff may request punitive damages in federal court against an employer who acted recklessly and with malice.

Sexual Harassment Case - Timing of Trial or Settlement Payment

When a case settles, both sides discuss and agree on how quickly the funds will be made available to the Plaintiff. Generally, the parties agree that payment will be made within weeks of signing the settlement agreement. In settlements, the parties have control of the terms of the settlement and can negotiate the deadline for paying the Plaintiff. When a case is won at trial, payment is required to be made within weeks of the judgment. If an appeal is filed, the payment will not likely be made until after all of the appeals are exhausted. An appeal sometimes takes more than 1 year to complete.

SEXUAL HARASSMENT LAWSUIT - SETTLEMENT CONFERENCE WITH JUDGE OR MAGISTRATE

If a settlement conference in set in front of a judge or magistrate, the parties are all required to be present. The judge generally acts as a mediator. He typically asks each side to make an opening remark. After opening remarks, the judge typically meets with each side privately to discuss the relative strengths and weaknesses of their respective positions. The judge will continue to meet with each side to discuss ways of resolving their differences and narrow the gap in the respective positions. The conference typically take several hours to complete. If the judge is successful in resolving the case, the parties typically prepare a written settlement agreement that will be reviewed and signed in the weeks following the settlement conference.

To prepare for a settlement conference, each side should know the facts of the case thoroughly by reviewing all of the pertinent documents, evidence, deposition testimony, witness testimony, damages, and expenses. Each side should also be thoroughly familiar with the relative strengths and weaknesses of his case to conduct a realistic assessment of his position. Each side should also be prepared to show the judge relevant case law, testimony, and documents that support its position. Settlement conferences are convened for the benefit of the parties to the case. It is a voluntary process during which no one is required to settle or accept a settlement offer that it does not wish to. Each side is able to terminate the process at will or reject any settlement proposals.

I was employed less than a week before I was injured. May I recover?

Yes. Employees are covered under the Illinois Workers’ Compensation Act from the very moment they begin their employment. So, even if you are injured within a few minutes of commencing your employment, you may be able to recover for your work related injuries.

I was injured at a social event (e.g. softball game, party, charity work) sponsored by my employer. May I recover?

It depends. Recovery is not allowed if attendance to the employer sponsored event was voluntary. However, if your employer made attendance mandatory, you may recover for your injuries.

A co-worker received substantially more money than that being offered to me for the same injury. Why the huge discrepancy?

A number of factors come into play. The amount of recovery is based in part on how much you earn per week (excluding overtime). Thus, if your co-worker is earning substantially more, his settlement amount would likely be higher. Another factor taken into consideration is the amount of time it took for recovery. Let us assume that both you and your co-worker suffered a work related injury that resulted in a herniated disk in the lumbar spine. It takes you five weeks of treatment to return to work. On the other hand, it takes your co-worker sixteen weeks of treatment to return to work. Such a difference in the period of treatment more than likely reflects that your co-worker’s injuries were more severe than yours. Thus, your co-worker’s settlement value would likely be higher.

My minor child was injured on the job. I have since been made aware that he was employed illegally. Does my child have rights under the Illinois Workers’ Compensation Act or other statutes?

Yes. A workers’ compensation claim may be brought on behalf of the illegally employed minor, and all the benefits afforded under the Act would be available to him. Normally, the Act is the exclusive remedy for employees injured on the job. One exception is when the employer illegally employs minors (i.e. employment violates child labor laws or minor did not have a work permit). In such a scenario, the illegally employed minor may elect to reject his rights and benefits under the Act. In doing so, the illegally employed minor has the right to pursue his common law and/or statutory remedies to recover for his injuries. The injured illegally employed minor must reject his rights and benefits under the Act within six months of the injury or within six months of appointment of legal representation, whichever is later.

My employer had workers’ compensation insurance when my injury occurred. My case has not been resolved and my employer no longer has workers’ compensation insurance. Will I no longer be able to recover a monetary award?

That is not necessarily the case. If your employer made all the required payments to the insurance carrier and decided not to renew the policy, you may still recover a monetary award so long as your injury occurred during the coverage period of the policy.

My employer is contesting my injury as non-compensable under the Illinois Workers’ Compensation Act. Since my employer has not paid my medical bills, my medical treaters are threatening to initiate collection proceedings and report me to the credit report

Yes. If you notify the medical treater that your injury was a result of a work accident and give them the employer’s contact information, the medical treater must bill the employer directly. At that point, the law would also prohibit the medical treater from attempting to collect payment or from reporting you to the credit agencies until a determination has been made by the Illinois Workers’ Compensation Commission. The medical provider may continue to send you reminders of the balance.

My employer is requiring me to go to its doctor. Can I go to a doctor that I select?

Yes. You may select up to two doctors for treatment. The employer would be required to pay for the medical services rendered by these doctors. It is also important that you continue to make all of the appointments scheduled with the company doctor. If you fail or refuse to go to the company doctor, you risk the employer terminating your benefits and access to the doctors of your choice.

Sexual Harassment - Receiving A Complaint

Where a sexual harassment complaint has been made, a thorough investigation coupled with appropriate disciplinary action, if complaint is established, is an employer’s best defense to sexual harassment lawsuits. When combined with a good, well-disseminated sexual harassment policy with a clear complaint mechanism that by-passes that alleged harasser, employers are adequately prepared to defend harassment claims.

Conducting a Sexual Harassment Investigation

A thorough sexual harassment investigation typically involves the following steps:

  • Placing the alleged harasser on suspension status immediately to prevent interference with the investigation
  • Detailed interview of the victim supported by a written statement
  • Detailed interview of the harasser
  • Documented interview of witnesses to the alleged sexually offensive conduct
  • Documented interview of other employees who have worked with the individual accused of sexual harassment
  • Written and signed statements should be taken from the individuals interviewed. Each person interviewed should be advised of the non-retaliation policy
  • A detailed summary of the investigation conclusion, and possible remedial action

Selecting an Investigator for Sexual Harassment Complaints

Employers must be careful to select an appropriate investigator in each situation because the decision who conducts the investigation often determines the course of the investigation and remedial action as well as the employer’s possible liability in the case. Many times, an employer’s defense to a sexual harassment lawsuit hinges on the conduct of its investigator.

In selecting the individual to conduct the investigation, an employer has to carefully evaluate the various issues that may affect that individual’s objectivity. Office politics, established relationships, unclean hands of an investigator, personal friendships and interdepartmental frictions are factors that may affect the objectivity an in-house investigator.

Some employers actually incur liability, not necessarily for the sexual harassment, but from an improperly conducted investigation. In many instances, an investigator who has a long-standing relationship with the individual accused of sexual harassment, uses his power as an investigator to retaliate against the individual complaining and her witnesses. Often, the employer’s upper management is unaware of these personal relationships (typically outside of work) until such is revealed during litigation. When such personal relationships or office politics are involved, investigations are often slanted in favor of the harasser and against the victim and her witnesses. I

In some instances, the victim and his/her witnesses are disciplined by the biased in-house investigator and no discipline is given to the harasser who is sometimes permitted to interfere with the investigation by intimidating witnesses and rounding up supporters for his cause. Mishandled investigations of this sort create difficulty for employers during litigation and could result in a guilty verdict and possible award of punitive damages. As such, the appropriateness of using an external investigator or law firm should be carefully evaluated.

Remedial Action/Discipline After Sexual Harassment Investigation

If the sexual harassment allegations are confirmed, an employer should consider the following steps to effect proper remedial/corrective action

  • Discipline should be imposed if allegations are confirmed
  • For an employer with a zero-tolerance policy, terminating the harasser may be only appropriate measure in compliance with the policy
  • If termination is not appropriate, then the following should be considered: demotion, unpaid suspension, transfer, shift change or pay reduction

Evaluating An In-House Investigator for Sexual Harassment Complaints

Where an employer chooses to use an in-house investigator, it may be prudent to select a manager from a different branch who has minimal contact with the employees in the office where the harassment occurred. First, employee witnesses are likely to view a manager from a different office as more objective. Second, a manager from a different office is likely not to be affected by the local office politics. He/she is also likely not to have established relationships that may affect his objectivity in investigating and recommending discipline. Other criteria to review in evaluating an in-house investigator follow:

  • Relative Position in the Organization (the higher, the better)
  • Understanding of Sexual Harassment and Retaliation Laws
  • Knowledge of Employer’s Sexual Harassment Policy
  • Knowledge of the Employer’s Discipline Policies
  • Knowledge and Training on Conducting Investigations
  • Overall Objectivity, Fairness and Impartiality
  • Good Understanding of Conduct that Amounts to Retaliation
  • Ability to Devote Sufficient Time To Witness Interviews
  • Overall Tact and Ability to Gain the Trust of Employees
  • Ability to Communicate Findings to Upper Management Objectively
  •  Ability to Maintain Confidentiality of Sensitive And Personal Matters Acquired During The Investigation

Our Law Firm On Sexual Harassment Complaint Investigations

  •  Our experienced sexual harassment employment attorneys can assist as necessary. Upon request, we help employers by using our staff to conduct a thorough and objective investigation. We will prepare a summary of the investigation and recommend appropriate discipline or other remedial action, if warranted.

    Where the employer prefers to use its in-house staff to conduct the investigation, we can assist in suggesting a written investigation and follow-up plan. We will coordinate with the in-house investigator, prepare witness interview questionnaires, recommend names of witnesses to interview, and review witness statements and reports prepared by in-house investigators for thoroughness. We recognize that each situation is different and welcome an opportunity to propose a plan that is tailored to the specific issues presented.

  • Frequently Asked Questions About Sexual Harassment

 

Employer Liability - Sexual Harassment Laws

The law under which a sexual harassment case is brought is a significant determining factor as to employer liability. Under some laws, an employer is held strictly liable for the conduct of supervisory and managerial employees and harassment by nonsupervisory employees are treated differently. A different statute, forum or administrative agency may afford an employer a defense even in the case of supervisor sexual harassment. However, an employer is held strictly liable in cases of Quid Pro Quo sexual harassment under most laws if the victim loses a tangible job benefit..

The different laws and statutes provide for damages that differ which likely affects a company’s evaluation of the case. For example, some laws only permit recovery of actual and out-of pocket damages while others permit recovery of punitive damages, compensatory damages and attorney’s fees. A jury is also not provided by all of the different laws and statutes. Whether the case is tried to a judge or a jury significantly impacts an employer’s evaluation of the case.

The total number of employees that an employer has often determines what laws apply to them at all. Similarly, where damages are capped, the number of employees typically determines the total amount of damages that a particular employer would be exposed to in the event of a verdict on behalf of the victim.

To understand an employer’s possible financial exposure requires a thorough analysis of the forum where the charge of discrimination is filed as well as the court or administrative agency where the case is pending.

Employer Liability for Sexual Harassment - Harasser’s Job Position

Generally, the higher the position of the alleged harasser, the more likely it is that the employer will be held liable for his or her conduct. The reasoning is that since a company is not an individual but a corporate being, it can only act through its managers, officers and executives. As such, the higher the position of the actor is in the corporate chain, the more likely it is that his conduct will be attributed directly to the company.

Thus, while the conduct of a first-line supervisor could potentially be attributed to the company, the conduct of the President/Chief Executive Officer is most likely to be attributed to the company who will be required to pay damages for such.

The most important consideration on this issue rests on whether the victim of sexual harassment has an effective avenue to complain over the alleged harasser. Where a harasser holds so high a position that complaining to higher-ups is rendered or perceived as ineffective, the company is more likely to be held liable because the victim has no reasonable complaint avenue that will ensure appropriate disciplinary action against the harasser. In other words, the company is typically liable when the harasser has no real "boss."

Employees are also more likely not to complain for fear of retaliation where the harasser holds a high position in the organization. For instance, assume the only VP in an organization is sexually harassing a receptionist whose immediate supervisor is several levels below the VP in the reporting chain. A sexual harassment policy that requires the receptionist to complain to her immediately supervisor may not be viewed as effective. The receptionist may fail to complain for fear of retaliation because of the harasser’s dominant position in the chain of command that she is required to follow.

In this regard, it is important for an employer to craft and disseminate a policy that provides a meaningful complaint avenue with an effective mechanism that avoids harassers that occupy a high position in the reporting chain.

Sexual harassment by non-supervisory employees pose a lesser problem for employers in most instances. Most laws require that in such situations, the victim must prove that he or she reported the sexual harassment to management and management responded negligently. A swift and reasonable response accompanied by appropriate discipline will likely provide a good defense for the employer in such cases.

Sexual Harassment - Employer Liability Due To Negligent Investigation

Perhaps the since most important factor in evaluating employer liability rests on its response to the sexual harassment complaint. Here, the most important decision for an employer is the decision who to entrust with the duty to investigate. Often, those that are selected to conduct the investigation are so personally vested in the work situation with complex inter-personal relationships and office politics that they are simply unable to conduct a fair investigation.

Friendships, long-standing loyalties, possible previous biases against the victim as well as fear of possible blame for having permitted the situation to fester, frequently cause otherwise well-meaning investigators to slant the investigation against the victim in favor of this harasser. In some instances, the victim and her witnesses are retaliated against and possibly terminated while the harasser goes unpunished. Sometimes, the victim is transferred to an inferior position, location or shift while the harasser is viewed as more important to the organization and left untouched.

Such evidence can be devastating to an employer’s defense in court or an administrative agency. Depending on the nature and severity of the conduct, a jury might consider an award of punitive damages in the case. As a result, an employer who otherwise would not have been found guilty of sexual harassment at all may end up with significant financial liability, not resulting from the acts of sexual harassment, but the conduct of its officers charged with investigation and remedial actions.

In cases of this sort, it is important to carefully consider the decision to appoint an internal vs. an unbiased external investigator, the discipline to be given to the offender and the situation that the victim is left in after the complaint. A response that ultimately leaves the victim worse off after the complaint is generally viewed as negligent and insufficient.