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7th Circuit Reaffirms That a Pay Disparity Based Upon Prior Sex is a Legitimate Factor Other Than Sex Under the Equal Pay Act

In Lauderdale v. Illinois Department of Human Services, a female, state of Illinois employee, filed suit under Title VII, Section 1983 and the Equal Pay Act claiming her pay disparity with a male co-worker was based upon her gender. Plaintiff established that she was performing work equal to, or even greater than, her male co-worker.   Continue Reading »

EEOC Announces Dramatic Reduction in Charge Inventory

On Thursday, November 9, 2017, the EEOC announced that it had dramatically reduced its charge inventory in fiscal year 2017. The EEOC attributed this reduction in inventory to: (1) EEOC offices deploying new strategies to more efficiently prioritize charges with merit and more quickly resolving investigations once the agency had sufficient information; and, (2) improvements   Continue Reading »

Noncompetes Often "Stick" when Associated with Sale of a Business

In E.T. Products, LLC v. D.E. Miller Holdings, Inc., the 7th Circuit was asked to assess whether a non-compete included in the sale of a business was valid, and then if so, whether the defendant violated it. The non-compete at issue had a five-year duration and was quite broad in geographic scope, and in the   Continue Reading »

7th Circuit Rejects Medical Leave of Absence Request as Reasonable Accommodation Under the ADA Following Exhaustion of FMLA Leave

In Severson v. Heartland Woodcraft, Inc., plaintiff exhausted his 12-week FMLA leave to deal with back pain. He underwent back surgery on the last day of his FMLA leave. The surgery required a medical leave of absence of another two-three months. Plaintiff requested an extension of his medical leave of absence. The employer denied the   Continue Reading »

Seventh Circuit Upholds EEOC's Investigatory Authority Despite Resolution of the Underlying Case in favor of the Employer

In this appeal, Union Pacific Railroad challenged the EEOC’s authority to continue its investigation after issuing a Right to Sue letter and after the district court had granted summary judgment in favor of the employer. While an issue of first impression in this circuit, similar challenges have created a split in authority between the Fifth   Continue Reading »

Common Actor Inference a Jury Question Not Suitable for Summary Judgment

The Seventh Circuit Court of Appeals previously explained that the “common actor inference” says it is reasonable to assume that if a person was unbiased at Time A (when he decided to hire the plaintiff), he was also unbiased at Time B (when he fired the plaintiff).  This principle dates back to EEOC v. Our   Continue Reading »

Illinois One Day Rest in Seven Act Can Be Waived by Employee

Illinois’ One Day Rest in Seven Act provides that employees are to be provided 24 hours of rest for every 7 days worked.  ODRISA, 820 ILCS 140/1. In the case at bar, an employer subject to a collective bargaining agreement with an arbitration clause decided to prohibit employees from working 7 consecutive days without a   Continue Reading »

7th Circuit Court of Appeals Affirms Preliminary Injunction Authorizing Transgender Bathroom Use

On May 30, 2017, the 7th Circuit Court of Appeals ruled that the district court did not err in granting the plaintiff’s motion seeking issuance of a preliminary injunction in an action alleging that the defendant school board’s refusal to allow plaintiff, a17 year old transgender student, to use the boy’s restroom violated Title IX   Continue Reading »

Ninth Circuit Opens Divide in Equal Pay Cases

The Equal Pay Act bars employers from paying men and women differently for the same work. The Act places the burden on plaintiffs to show they’re paid less because of their sex, and also allows employers four affirmative defenses: that the disputed pay policy is based on seniority, that it’s based on merit, that it   Continue Reading »

Full Seventh Circuit Reverses Course on Sexual Orientation Claims Under Title VII

In the case under appeal, the plaintiff, an adjunct professor, claimed that because she’s a lesbian her employer declined to either promote her to full-time employment or renew her part-time employment contract. She sought redress on the basis of the provision of Title VII that forbids an employer “to fail or refuse to hire[,] or   Continue Reading »

10th Circuit Refuses to Enforce EEOC Pattern and Practice Administrative Subpoena

The debate over the scope and breadth of Equal Employment Opportunity Commission (EEOC) administrative subpoenas continues throughout the federal court system with the Supreme Court expected to jump into the fray in either its 2017 or 2018 term. In the past, courts were hesitant to question the valid scope or breadth of an EEOC administrative   Continue Reading »

Third Circuit Joins the Fray - Holds That Class Actions are Not Available Where the Arbitration Agreement is Silent on the Issue

On January 30, 2017, a panel of Third Circuit Court of Appeals joined the Fifth, Sixth, Seventh, Eighth and Ninth Circuits in declaring that class actions are not available where the arbitration agreement is silent in that regard.  However, this disposition is not an opinion of the full court and does not constitute binding precedent   Continue Reading »

Fourth Circuit Court of Appeals Establishes New "Joint Employer" Test Under the Fair Labor Standards Act

Just when employers thought they had some clarity around the issue of “joint employer,” an appellate court introduces a new test for assessing “joint employer” status. Initially, the Fourth District Court of Appeals ruling affects only the circuit courts in its jurisdictions.  However, the ruling could “spill over” into other circuit courts that have either   Continue Reading »

Employer's Wellness Program Covered by the ADA's Insurance Safe Harbor - EEOC Challenge Declared Moot

The debate over corporate wellness programs continues in courts throughout the country. The Seventh Circuit Court of Appeals recently affirmed a district court grant of summary judgment which upheld a wellness program, but on different grounds than the district court. The Seventh Circuit’s opinion didn’t move the needle much in either direction, although the opinion   Continue Reading »

EEOC Issues 2016 Fiscal Year Performance Report

As the year winds down, it’s a good time to reflect on the experiences of 2016 as we prepare for the risk management needs of 2017. For employers, that means gleaning from the Equal Employment Opportunity Commission’s (EEOC) year-end fiscal performance report.  The November 15th report noted that the EEOC secured more than $482.1 million   Continue Reading »

Illinois Bans Noncompetes for Low Wage Earning Employees

Illinois has passed into law the “Illinois Freedom To Work Act.” It takes effect on January 1, 2017.  Section 10 of the Act prohibits employers from entering into covenants not to compete with any low-wage employee.  Any such agreement is declared illegal and void. A “low wage employee” is defined as an employee who earns   Continue Reading »

Are Your Employment Agreements Current? The Defend Trade Secrets Act Impact

Now is always a good time to review employment policies and agreements as the year comes to an end. Many states, counties and cities have passed paid time off (PTO) laws or pregnancy accommodation laws that require policy review by employers.  Additionally, the federal Defend Trade Secrets Act (DTSA), effective May 11 2016, requires that   Continue Reading »

Expert Allowed to Testify That Employer's Anti-Discrimination Policies Met Custom and Practice in the Industry

In a recent discrimination lawsuit filed against an employer, the defendant presented the testimony of an expert to refute any punitive damages claims under Kolstad.  The court’s opinion provides a road map for the use of expert testimony to support the Kolstad defense. The EEOC filed suit against an international shipping company on behalf of   Continue Reading »

Mach Mining Revisited Again - Leave to Add Party Defendants Who Didn't Have an Opportunity to Conciliate Denied

We’ve previously written about the U.S. Supreme Court’s decision in EEOC v. Mach Mining as it relates to the issue of administrative conciliation requirement, as well as the circuit court’s subsequent ruling upon remand from the Supreme Court.  This time we focus on the district court’s refusal to allow the EEOC to amend their complaint   Continue Reading »

EEOC Publishes Resource on the Rights of Job Applicants and Employees with Mental Conditions under the ADA

On December 12, 2016, the United States Equal Employment Opportunity Commission (EEOC) published a new Resource on the Rights of Job Applicants and Employees with Mental Conditions under the Americans with Disabilities Act (ADA). The publication focuses on three legal rights employees and employers should be aware of for mental health disabilities under the ADA;   Continue Reading »

Penn Student Athletes Not Employees Under FLSA

On December 5th, 2016, the United States Court of Appeals for the 7th Circuit decided Berger v. National Collegiate Athletic Association. In Berger, former student athletes at the University of Pennsylvania (“Penn”) sued Penn, the National Collegiate Athletic Association (“NCAA”), and more than 120 other NCAA Division I universities and colleges alleging that student athletes   Continue Reading »

New Whistleblower Settlement Guidance Announced by OSHA

Employers may have received some assistance from the Occupational Safety and Health Administration (OSHA) in whistleblower and other retaliation cases. The agency recently issued new guidance that helps employers navigate the ever changing river of challenges to settlement agreements in whistleblower and other retaliation cases, whether based upon federal or state law (where state enforcement   Continue Reading »

Illinois Passes Sick Leave Law

The Illinois Employee Sick Leave Act takes effect on January 1, 2017. This Act will affect employers outside the city of Chicago.  The Chicago Sick Leave Ordinance, set to become effective on July 1, 2017, outlines sick leave requirements for employers in Chicago. In a nutshell, under the Illinois Employee Sick Leave Act, if an   Continue Reading »

In ADA Lawsuit, EEOC Ordered to Produce Claimants' Medical and Work Records, and Work History

In a recent district court ruling in Illinois, organizations faced with Americans With Disabilities Act (ADA) actions can now request that the Equal Employment Opportunity Commission (EEOC) produce claimants’ medical and work records, as well as their work history. This ruling clearly indicates that courts will uphold discovery propounded upon the EEOC in ADA actions   Continue Reading »

EEOC Announces Updated Strategic Enforcement Plan

High Tech Companies and Applicant Screening Tools Draw More Attention The Equal Employment Opportunity Commission (EEOC) announced on Monday that it recently approved an updated Strategic Enforcement Plan (SEP) for fiscal years 2017-2021.  “This SEP builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating   Continue Reading »

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued its final enforcement guidance on retaliation and other related issues. The EEOC also issued two short user-friendly resource documents to accompany the new guidance: a question and answer publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the   Continue Reading »

Governor Rauner Signs Bill Prohibiting Non-Compete Agreements For Low-Wage Employees

On August 19, 2016, Governor Rauner signed into law the Illinois Freedom to Work Act. The Act takes effect on January 1, 2017.  The Act prohibits employers from entering into covenants not to compete with any low-wage employee of the employer and, further provides that a covenant not to compete entered into between an employer   Continue Reading »

OSHA Pilots New, Expedited Whistleblower Review Process

The Department of Labor (DOL) issued a news release on August 16, 2016 announcing the launching of a new pilot process in its Western region. The new process, the “Expedited Case Processing Pilot,” allows a complainant covered by certain statutes to ask OSHA to cease its investigation and issue findings for the department’s Office of   Continue Reading »

"Overbroad" Employee Handbook Provisions Continue to Garner the Attention of the NLRB and its ALJs

Recently, the National Labor Relations Board (“NLRB”) has been clear in its direction that certain “overbroad” employee handbook provisions concerning harassment, investigation confidentiality and the like violate the National Labor Relations Act (“NLRA”). On August 9th, 2016, Administrative Law Judge Robert Ringler continued this trend with a published decision involving a Chicago car dealership. In   Continue Reading »

Worker Protections Secured Behind Chicago's New Paid Sick Leave Ordinance

In a unanimous vote, Chicago’s City Council recently passed an ordinance that will mandate practically all employers within city limits to provide a minimum amount of paid sick leave to its employees. In doing so, Chicago has joined the ranks of other cities such as New York and San Francisco in this growing trend of   Continue Reading »

Drafting Effective EEOC Position Statements

As most of you know, the EEOC has gone electric with its charge processing. This includes the electronic submission of documents that have been requested by the EEOC, accepting or rejecting mediation, and of course the electronic submission of position statements. The EEOC has also announced that it will be sharing Respondent’s position statements with   Continue Reading »

Mach Mining Conciliation Issue Revisited by District Court

On April 25, 2015, the United States Supreme Court released it’s much anticipated opinion on the EEOC’s conciliation effort requirements prior to filing suit, stating in part: We hold that a court may review whether the EEOC satisfied it’s statutory obligation to attempt conciliation before filing suit. But we find that the scope of that   Continue Reading »

Non-Compete Agreements Under Attack in Illinois

The Illinois Attorney General’s office is aggressively targeting non-compete agreements as anti-competitive and illegal. Today, Attorney General Lisa Madigan announced that the state is investigating Jimmy John’s sandwich-shop over what she contends are highly restrictive non-compete agreements on employees.  Madigan filed a lawsuit against Jimmy John’s two corporate entities – Jimmy John’s Enterprises LLC and   Continue Reading »

Employer Beware - Department of Labor's New Overtime Rules Require Review and Action

On May 18, 2016, the United States Department of Labor announced the release of its final rule updating overtime regulations that will impact over 4 million American workers and employers across the United States. New Rule Brings Four Primary Changes The final rule, which will go into effect December 1, 2016, focuses primarily on updating   Continue Reading »

U.S. Departments of Justice and Education Weigh in on Transgender Issues

This article is the latest in our continuing reporting on the transgender debate going on in our courts and legislatures. On Friday, May 13, 2016, the U.S. Departments of Justice and Education (DOJ/DOE) released joint guidance in an effort to help provide educators the information they need to ensure that all students, including transgender students, can   Continue Reading »

Drafting a Leave Policy – Easier Said Than Done

Creating an all-encompassing leave policy for your company has become an increasingly complicated and at times confusing task.   There are currently no federal laws in place in the U.S. that require employers to provide paid leave.  However, the same is not true on the state and local level.  More and more states as well as   Continue Reading »

Fourth Circuit Reverses District Court on Transgender Locker Room Issue Giving Deference to Department of Education Guidance Letter

We recently wrote on a Virginia District Court’s opinion dismissing a Title IX claim and denying a request for a preliminary injunction brought by a transgender student. As a refresher from that article, G.G., a transgender boy, sought to use the boys’ restrooms at his high school. After G.G. began to use the boys’ restrooms   Continue Reading »

Appellate Court Expands Reach of Illinois Human Rights Act, Impacting Pending and Future Litigation

In an expansive reading of the Illinois Human Rights Act (IHRA), an Illinois Appellate Court ruled that individuals can use the IHRA to file disability harassment and failure to accommodate claims. At the same time, the court provided municipalities with the relief allowed under the Tort Immunity Act.  All of this based upon the court’s   Continue Reading »

OSHA Investigations, DOL Whistleblower Investigations to Increase?

Department of Labor 2017 Budget Earmarks $1.27 Billion to Worker Protection Agencies The Fiscal Year 2017 budget for the Department of Labor has something for just about everyone, including potentially more OSHA investigations, more whistleblower investigations and more wage and hour investigations for small, medium and large businesses and organizations. According to the Department of   Continue Reading »

District Court Rejects Title IX Restroom Access Claim of Transgender Student

How schools treat transgender students as it relates to the use of restrooms and locker rooms has become a hotly debated issue throughout the country. In one of the first published federal court rulings on this issue, the District Court for the Eastern District of Virginia has dismissed a transgender student’s claim under Title IX   Continue Reading »

EEOC ORDERED BACK TO CONCILIATION

In a post Mach Mining opinion, a Federal District Court in Ohio ordered the parties to engage in good faith conciliation. The Equal Employment Opportunity Commission (EEOC) was warned that if it did not participate, the court would impose any and all consequences available including, but not limited to, contempt and dismissal. The court ordered the   Continue Reading »

MOTOR CARRIER'S SELF-REPORTING POLICY VIOLATES THE ADA

A for-hire motor carrier company’s self-reporting policy ventured past the Department of Transportation’s regulations on safety sensitive jobs and into territory governed by the Americans with Disabilities Act (ADA), a Federal District Court in Arkansas stated in EEOC v. Old Dominion Freight Lines, Inc. The Court found the policy, which applied to self-reporting drivers who had   Continue Reading »

EEOC DENIED “ROVING DEPOSITIONS” AND ONSITE INSPECTION OF EMPLOYEE FUNCTIONS

The Equal Employment Opportunity Commission (EEOC) filed a motion to compel a medical center to allow the EEOC to conduct an onsite inspection of the essential functions of a licensed practical nurse and roving depositions of other personnel within the surgical department. The District Court in Mississippi denied the EEOC’s motion pointing to concerns over patient privacy   Continue Reading »

The Supreme Court to Again Consider ERISA Plan Reimbursement Claims

Employer-sponsored group health plans often include a provision in the plan documents that affords the plan a right of reimbursement as to benefits paid to an injured participant when he or she obtains a settlement or judgment from a culpable third-party who caused the injuries. On several occasions the Supreme Court of the United States   Continue Reading »

Seventh Circuit Rejects Providers' Claim to "Beneficiary" Status Under ERISA

On October 1, 2005, the United States Court of Appeals for the Seventh Circuit reversed a District Court ruling that had afforded certain care providers with “beneficiary” status to contest an ERISA-governed plan’s determination of how to calculate the providers’ pay for chiropractic service rendered to plan participants. Pennsylvania Chiropractic Ass’n. v. Independence Hosp. Indem. Plan,   Continue Reading »

NOTICE OF CONTINGENT WITHDRAWAL LIABILITY IS SUFFICIENT TO ESTABLISH THE NOTICE PRONG OF SUCCESSOR WITHDRAWAL LIABILITY UNDER ERISA

On Tuesday, July 27th, 2015, the United States Court of Appeals for the 7th Circuit closed a successor withdrawal liability loophole it felt existed in the notice aspect of the successor withdrawal liability test.  In Tsareff v. ManWebServices, Inc., 14-1618, the 7th Circuit rejected the District Court’s conclusion that pre-acquisition notice of contingent withdrawal liability   Continue Reading »

Updates to the Americans with Disabilities Act (the ADA)

Joseph F. Spitzzeri and Amber N. Lukowicz delve into the most recent updates to the Americans with Disabilities Act (the ADA).

EEOC ISSUES PROPOSED RULE ON APPLICATION OF ADA TO EMPLOYER WELLNESS PROGRAMS

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) published its Notice of Proposed Rule Making (NPRM) describing how the ADA applies to employer wellness programs that are part of a group health plan.   How Title II of the Genetic Information Nondiscrimination Act (GINA) impacts an employer’s ability to condition incentives on a family   Continue Reading »

APPELLATE COURT RULING REAFFIRMS THAT YOU CAN’T HAVE YOUR CAKE AND EAT IT TOO. PARTNERS OR PRINCIPALS OF LLCS ARE EXEMPT FROM RECEIVING UNEMPLOYMENT COMPENSATION BENEFITS

There are many benefits to attaining partnership status in a limited liability corporation, but a recent ruling in the Illinois First Appellate Court reaffirms that collecting unemployment insurance is not one of them. In Weinberg v. Blair and Co., LLC, 2015 IL App (1st) 140490, the First District Appellate Court held that a partner of   Continue Reading »

Supreme Court Upholds District Court's Review of the EEOC's Conciliation Efforts

In a victory for employers, the U.S. Supreme Court held on April 29, 2015 that courts do in fact have the authority to review whether the EEOC satisfied its statutory obligation to attempt conciliation.  However, the Court did note that such review is narrow. Before suing an employer for discrimination, the Equal Employment Opportunity Commission   Continue Reading »

Recent Seventh Circuit Opinion Continues Support of Exemption in FLSA Overtime Pay Complaints

Corporation Cleaning Services (hereinafter “CCS”) is Chicago’s largest provider of window washing services to high rise commercial and apartment buildings along with some governmental and other non-commercial, non-residential, buildings such as hospitals and museums; fewer than 1% of its customers are private home owners.  Plaintiffs were 24 window washers employed currently or formerly by CCS   Continue Reading »

In the Crosshairs: EEOC Targeting Companies With Outdated Return from Leave Policies

The Equal Employment Opportunity Commission (EEOC) continued its aggressive attack against employers with inflexible disability leave policies by filing suit against an Arizona disability services company.  The EEOC alleges that the disability support services company unlawfully discriminated against disabled employees by refusing to provide them with reasonable accommodations in violation of federal law.  The defendant is   Continue Reading »

Hospital Hit for $300K for Firing Employee After Leave of Absence

EEOC Continues Effort to Contest Return From Leave of Absence Terminations. The U.S. Equal Employment Opportunity Commission issued a bulletin that an Oakland-based, non-profit regional medical center has agreed to pay $300,000 to a former employee with breast cancer and to implement revised policies and training to settle a federal disability discrimination lawsuit filed by   Continue Reading »

Department of Labor’s Efforts to Revamp Companionship Exemption Under FLSA Rejected

In a huge victory for home healthcare providers across the country, the United States District Court for the District of Columbia recently vacated the Department of Labor’s proposed regulatory changes to the companionship exemption under the Fair Labor Standards Act (FLSA). Those changes were set to take effect in January 2015.  The District Court’s rulings restored,   Continue Reading »

Attention Employers: A New Year Brings New Employment Laws for 2015

Numerous new laws will take effect on January 1, 2015. Some are effective immediately. Two of the new laws impact employers directly. One involves the rights of pregnant workers and amends the Illinois Human Rights Act in that regard. The second involves the use of criminal histories during the job application/interview process. All employers should review their employee handbooks   Continue Reading »

The Religious Rights of Corporations - The Far Reaching Implications of the Hobby Lobby Case

William G. Beatty’s paper on the U.S. Supreme Court’s decision in the Hobby Lobby case has been published as a Feature Article in the latest edition of the IDC Quarterly. The Hobby Lobby decision has significant impact upon the health insurance industry and upon employee benefit practitioners as well as major First Amendment implications for both   Continue Reading »

EMPLOYER PRE-MEDICAL TREATMENT NOTICE POLICIES CALLED INTO QUESTION

There are many examples of employers being penalized for the actions they take in response to employee injuries. Employers must be mindful and act appropriately to both avoid them in the first instance, and/or be prepared to respond to them when claims are made. Background As of January 2011, FedEx had a company policy that   Continue Reading »

NEW REQUIREMENTS FOR EMPLOYERS USING PAYROLL CARDS

Governor Quinn recently signed into law Public Act 098-0862 concerning payroll cards.  The Act, found at 820 ILCS 115/14.5, goes into effect on January 1, 2015.  Under the law, employers may not condition employment or employment benefits on an employee’s decision to receive wages on a payroll card. Before transferring wages to a payroll card,   Continue Reading »

EEOC ISSUES UPDATED PREGNANCY DISCRIMINATION GUIDANCE

Issued July 24, 2014, the EEOC Compliance Manual Report No. 210 discusses the EEOC’s recently released updated guidance on pregnancy discrimination and related issues including pregnancy and the ADA, the FMLA, and a section on the Patient Protection and Affordable Care Act’s (ACA) requirement that employers provide “reasonable break time” for nursing mothers. HR professionals   Continue Reading »

EEOC FILES SUIT OVER COMMON SEVERANCE AGREEMENT LANGUAGE

On February 7, 2014, the Chicago Office of the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against CVS Pharmacy, Inc. alleging its separation agreements violate Section 707 of the Civil Rights Act of 1964.  The Chicago office is widely recognized as the most aggressive of the EEOC’s offices.  The EEOC takes issue with the   Continue Reading »

SYSTEMIC DISCRIMINATION: A CAUTIONARY TALE

Sometimes employment discrimination is blatant. Sometimes it is not. Sometimes it may be perceived, but it isn’t there. For some, employment discrimination may be an “I-know-it-when-I-see-it” kind of phenomenon. But, what happens when discrimination is occurring but a company doesn’t see it? And, what happens if, over time, employment discrimination becomes a part of the   Continue Reading »

DOL Whistleblower Investigations: A Summary Overview

I.      Whistleblower Investigations OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than twenty-one whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by   Continue Reading »

Interacting With The Equal Employment Opportunity Commission (EEOC) During Administrative Investigations

I.       INTRODUCTION The Equal Employment Opportunity Commission (EEOC), created by Congress in 1964, is an independent federal agency whose mantra is to prevent discrimination in the workplace. The EEOC enforces several federal anti-discrimination statutes which include: Title VII of the Civil Rights Act which prohibits employment discrimination based upon race, color, religion, sex and national   Continue Reading »

SUPREME COURT TO WEIGH EEOC'S DUTY TO CONCILIATE BIAS CLAIMS

In a positive development for employers throughout the land, the United States Supreme Court will consider a dispute over the Equal Employment Opportunity Commission’s duty to try and settle charges of job discrimination before filing lawsuits against employers. The issue has riled business groups as the Obama administration has aggressively stepped up enforcement of the   Continue Reading »

The Tip Credit – The End of the Automatic Gratuity?

Restaurants may want to reconsider the use of automatic gratuities in light of the IRS recent ruling categorizing automatic gratuities as service charges. This ruling took effect on January, 1, 2014. IRS Revenue Ruling 2012-18 classifies automatic gratuities as service charges which are then considered restaurant income. (Rev. Rul. 2012-18, 2012 26 1.R.B. 1032). If   Continue Reading »

Illinois Medical Marijuana Act and Illinois Employers - An Update

Illinois has joined a number of states and the District of Columbia in decriminalizing the use of marijuana for medical purposes.  This update provides useful information to employers in Illinois about the current status of rule making pursuant to the Act, as well as compliance with the Act and federal law. Current State of Rule Making   Continue Reading »

EEOC HIT TWICE IN THREE MONTHS FOR PURSUING FRIVOLOUS CLAIMS

Two recent court rulings have stuck the Equal Employment Opportunity Commission (“EEOC”) with a legal bill for $5.4 million for bringing frivolous claims.  On August 1, 2013, the United States District Court for the Northern District of Iowa, on remand from a decision of the Eighth Circuit Court of Appeals, ordered the EEOC to pay   Continue Reading »

Supreme Court Ruling Favors Companies in FLSA “Donning” and “Doffing” Disputes

In Sandifer v. United States Steel Corp. (Jan. 24, 2014),  the U.S. Supreme Court unanimously concluded that U.S. Steel Corp. is not required to compensate a class of workers for the time they spent putting on and taking off hardhats, gloves, flame-retardant suits and other protective gear. Sandifer is a victory for employers defending FLSA   Continue Reading »

INTERACTING WITH OSHA - EMPLOYERS' RIGHTS AND RESPONSIBILITIES

An OSHA Compliance Safety and Health Officer (CSHO) appears at your door to conduct an inspection, either programmed or unprogrammed. What can and should you do?  This paper summarizes CSHO inspections, the types of citations that can be issued, and the available responses to those citations as well as the procedures following a contest of   Continue Reading »

THE SEVENTH CIRCUIT EXAMINES THE EXPANDED SCOPE OF EQUITABLE RELIEF UNDER CIGNA CORP. V. AMARA

In Kenseth v. Dean Health Plan, Inc., 2013 U.S. App. LEXIS 12083 (7th Cir. 2013) (“Kenseth II”), (decided June 13, 2013), the Seventh Circuit examined the circumstances under which a monetary remedy may be available under the equitable remedies provisions of ERISA’s civil enforcement scheme. In 1987, the plaintiff Deborah Kenseth underwent a gastric banding   Continue Reading »

ERISA, THE COMMON FUND DOCTRINE AND FEDERAL COMMON LAW

The interaction of ERISA, the common fund doctrine and federal common law was recently demonstrated in the United States Supreme Court’s decision in the case of US Airways, Inc. v. McCutchen, _____ U.S. ______, 133 S. Ct. 1537, 185 L.Ed.2d 654 (decided April 16, 2013). Before discussing the ruling in that case, however, some prefatory definitions   Continue Reading »

U.S. SUPREME COURT FINDS THAT AN UNANSWERED RULE 68 OFFER THAT SATISFIES PLAINTIFF’S CLAIM IN ITS ENTIRETY MOOTS PLAINTIFF’S CAUSE OF ACTION AND NECESSITATES DISMISSAL OF AN FLSA COLLECTIVE ACTION

In Genesis Healthcare Corp. v. Symczyk, a Fair Labor Standards Act (FLSA) collective action was brought on behalf of the respondent and other employees similarly situated.  The District Court found that no other individuals had joined the respondent’s suit and the Rule 68 offer, which the respondent ignored, fully satisfied her claim, and concluded that   Continue Reading »

EEOC ISSUES REVISED PUBLICATIONS ON THE EMPLOYMENT RIGHTS OF PEOPLE WITH SPECIFIC DISABILITIES

On May 15, 2013, the Equal Employment Opportunity Commission issued four revised documents on protection against disability discrimination, pursuant to the agency’s plan to provide up-to-date guidance on the requirements of anti discrimination laws. The documents address how the American’s With Disability Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy and intellectual   Continue Reading »

U.S. Supreme Court Narrows the Scope of Title VII Harassment and Retaliation Claims

On Monday, June 24, 2013, a sharply divided U.S. Supreme Court (“Court”) (5-4 decisions) narrowed the ability of employees to sue their employers under Title VII harassment and retaliation theories of recovery.  Also, in a 7-1 vote the Court let stand the current test for the validity of college affirmative action programs. In University of   Continue Reading »

PHYSICIAN GROUP'S NON-COMPETE CLAUSE FAILS

In Gastroenterology Consultants of the North Shore v. Meiselman, et seq., the First District Appellate Court affirmed the trial court’s denial of a preliminary injunction to restrain the defendant physician from soliciting and treating his former professional corporation’s patients pursuant to a restrictive covenant.  After an evidentiary hearing, the trial court ruled the plaintiff professional   Continue Reading »

STATUTORY AMENDMENTS LIKELY TO INCREASE WHISTLEBLOWER ACTIVITY

Federal government contractors have long been aware of the temptation available to their employees to forego internal reporting of potential wrongdoing in favor of trying to strike it rich under a whistleblower action under the Federal False Claims Act. Recent changes to the Federal False Claims Act have contributed to increased recoveries under the Act,   Continue Reading »

TITLE VII TOP ON THE LIST FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) IN 2013

The EEOC has made its intentions known regarding Title VII and its plan to enforce it in the year 2013. Employers should be aware of the EEOC’s intentions with respect to Title VII and ensure that their recruiting, hiring, pay structures, ADA policies, ADEA and harassment policies are in place and compliant with the terms   Continue Reading »

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION COMMENTS ON HIGH SCHOOL DIPLOMA REQUIREMENTS

If an employer’s high school diploma job requirement screens out an applicant with an Americans with Disabilities Act (ADA)-covered learning disability, the employer may not apply the standard absent its ability to demonstrate that the diploma requirement is job related and consistent with business necessity, accord­ing to an informal discussion letter released by the EEOC   Continue Reading »

NATIONAL LABOR RELATIONS BOARD (NLRB) ISSUES THIRD REPORT ON SOCIAL MEDIA

In the new world of social media, many employers are now implementing policies regulating employee behavior on such venues.  In doing so however, employers could be subjecting themselves to their own legal scrutiny.  In May of 2012, the National Labor Relations Board issued its third report in the past year on social media cases.  In   Continue Reading »

THE SEVENTH CIRCUIT RE-EXAMINES THE "REASSIGNMENT" REMEDY UNDER THE ADA

The Americans with Disabilities Act of 1990 (ADA, 42 U.S.C. § 12101 et seq.) prohibits an employer from discriminating against an individual with a disability who, with a reasonable accommodation, can perform the essential functions of a job, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s   Continue Reading »

NLRB INVALIDATES CLASS ACTION WAIVERS IN EMPLOYMENT AGREEMENTS

  SUMMARY The National Labor Relations Board (NLRB) struck down mandatory class action waivers in employment agreements.  D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 6, 2012).  The two-member panel (the sole Republican appointee was recused) held the subject Mutual Arbitration Agreement (MAA), providing all employment disputes be subject to arbitration exclusively and waiving employee participation in   Continue Reading »

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) 2011 CHARGE AND LITIGATION STATISTICS ARE REVEALING

The Equal Employment Opportunity Commission’s (EEOC) Charge Statistics for 2011 reflect the number of individual charge filings.  Because individuals often file charges claiming multiple types of discrimination, the number of total charges for any given fiscal year will be fewer than the total of the 10 types of discriminations listed by the EEOC.  Despite this   Continue Reading »

EEOC RELEASES INFORMAL DISCUSSION LETTER REGARDING THE PROPER TREATMENT OF ARREST AND CONVICTION RECORDS WHEN SCREENING JOB APPLICANTS

During the hiring process, employers often scrutinize an applicant’s criminal history to ensure the selection of the best candidates and to prevent the hiring of individuals posing an unreasonable risk to the employer and the public. Illinois Law recognizes an action for negligent hiring or retention when an employer hires or retains an employee it   Continue Reading »

DOES DUKES SPELL "DOOM" FOR EMPLOYMENT DISCRIMINATION CLASS ACTION LAWSUITS?

In June 2011, the United States Supreme Court vacated one of the most expansive class action lawsuits ever. In Wal-Mart Stores v. Dukes, 131 S.Ct. 2541 (2011), Betty Dukes and two other class representatives sought to defend the Ninth Circuit Court of Appeals’ decision that allowed a class of 1.5 million women to allege that Wal-Mart discriminated against   Continue Reading »

E-VERIFY SELF CHECK FOR WORKERS

One of the most sensitive issues facing employers in the United States today is immigration law compliance.  As most of you know, the Department of Homeland Security works against illegal immigration.  Many employees are experiencing compliance issues due to the E-Verify system.  In order to deal with this complex issue, the United States Citizenship and   Continue Reading »

NATIONAL LABOR RELATIONS BOARD ISSUES COMPLAINTS OVER FIRINGS RELATED TO FACEBOOK POSTINGS

Regional offices of the National Labor Relations Board (NLRB) have recently filed complaints against employers who fired employees for complaining about worksite conditions, or their supervisors, on their personal Facebook pages.  The NLRB’s recent actions should send up “red flags” to employers because the complaints have been filed against both union and non-union employers.  The   Continue Reading »

RETALIATION CLAIMS BASED ON ORAL COMPLAINTS PERMITTED UNDER THE FAIR LABOR STANDARDS ACT

The United States Supreme Court recently ruled that “oral complaints” fall within the statutory term “filed any complaint” as it applies to the Anti-Retaliation Provision of the Fair Labor Standards Act.  The Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corporation clarifies the prior split in the Circuit Courts of Appeal regarding the application of oral   Continue Reading »

Johnson and Bell

Johnson and Bell