Skip to Content

J&B Blog Archives

Extracontractual Damages Without Bad Faith

Generally third party insurers have good reason to believe that if they don’t commit bad faith, the most they will have to pay for indemnity is the amount of the insurer’s policy limit. Numerous cases, of course, have held that where an insurer breaches the duty to settle, though, it will be on the hook   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 Interference 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 in Seven Rest Period 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 »

Ruling Raises Questions About OSHA Worksite "Controlling Employer" Policy

An interesting legal development in Texas might prove significant for construction companies and other employers within the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit – and any other jurisdiction that follows its view. The ruling should also encourage employers in other jurisdictions to challenge their circuit court’s rulings on “multiemployer/controlling employer”   Continue Reading »

Can The Underlying Plaintiff Collect More Than The Amount of the Underlying Judgment in Third Party Failure to Settle Cases?

In the typical third party bad faith case, the underlying plaintiff’s attorney makes a policy limits settlement demand, the insurer does not agree to pay its limits, or does not do so in the time the plaintiff’s attorney thinks it should, and the plaintiff then obtains a verdict substantially in excess of the policy limits.   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 »

Risk Management: Avoiding Unnecessary Litigation in the Enforcement of Sign Codes

INTRODUCTION Signs used by citizens to convey messages to the public are generally regulated by local town codes and ordinances. Restrictions on the use of such signs can create constitutional issues that municipalities must be wary of when enforcing the provisions of their particular code. Sign use restrictions in an Arizona town’s code were recently   Continue Reading »

Illinois Supreme Court Restricts Construction Negligence and Premises Liability Theories of Recovery in Illinois

Defense attorneys and their clients received a boost in personal injury cases involving construction accidents thanks to a recent Illinois Supreme Court ruling.  On October 20, 2016, the Supreme Court of the State of Illinois released its opinion in the case of Patrick Joseph Carney v. Union Pacific Railroad Company, 2016 IL 118984.  Plaintiff Carney   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 »

The GST Trust Tax Trap

The issues faced by trust and estate lawyers sometimes include complex tax analysis. One of those issues arises when an irrevocable trust skips a generation with trust assets going directly to grandchildren. That event may trigger a tax that is known as the federal generation-skipping transfer (GST) tax. The GST tax can be partially avoided   Continue Reading »

Know Your Adversary: Rules for Claims Against Federally Funded Health Centers

In 2014 alone, more than 1,300 federally funded health centers employed more than 11,200 physicians and more than 9,000 medical staff workers who treated approximately 23 million patients. Today, one in every fourteen people living in the United States relies on a federally funded health center for primary medical care. Further, the United States Department   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 »

Court Finds Municipality Used Arrest Record to Wrongfully Terminate Employment

In Murillo v. City of Chicago, the First District Appellate Court was asked to interpret a section of the Illinois Human Rights Act (Act) (775 ILCS 5/2-103(A) that prohibits employers from “[using] the fact of an arrest” as a basis to discriminate in employment.  Plaintiff, after about three years working as a janitor for a   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 »

Supreme Court Holds Fourth Amendment Requires a Warrant for Blood Testing

The Supreme Court recently weighed in on state laws that require a motorist suspected of driving under the influence to submit to blood testing. Birchfield v. North Dakota (No. 14-1468, June 23, 2016)[1]. The holding of Birchfield has far reaching implications for the many states that require a person to submit to warrantless blood tests.   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 »

OSHA Issues New Rules for Electronic Reporting

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses, which directly impacts employer recordkeeping. The revised regulations impose a new obligation that requires many employers to annually submit certain electronic injury and illness data directly to OSHA. This information will then   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 »

Supreme Court Ruling Expands First Amendment Municipal Liability

Ruling Focuses on Employer’s Motivation Rather than the Employee’s Intent — Even Where Employer Was Mistaken Regarding the Employee’s Behavioral Intent The Supreme Court recently expanded potential municipal liability in Heffernan v. City of Patterson, New Jersey (No. 14-1290, Apr. 26, 2016)[1]. The plaintiff, Jeffrey Heffernan, is a police officer working in the Police Chief’s office in   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 »

Utilizing the Appointment of Guardians ad Litem as a Defense Tool to Effectuate Settlement in Cases Involving Minor Plaintiffs and/or Minor Beneficiaries

Cases involving catastrophic injuries to minors, whether through birth trauma, motor vehicle collision, or any other alleged mechanism of negligence, can carry extremely high exposure due to the effect the injuries may have on the minor during the rest of his or her life. Especially in cases where liability is in question, litigants should be   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 »

Tendering Claims: Court Ruling Underscores Why Sooner Is Better

In February of 2016, the Illinois Appellate Court held that untimely notice by a company holding a certificate of insurance as an additional insured under a defendant’s policy barred coverage under the policy and precluded the company from seeking contribution from that defendant for a settlement paid by the company in an underlying action. The   Continue Reading »

New Procedure for Setting Trial Dates in Cook County Circuit Court Law Division Cases, Including Construction Injury Cases

On March 23, 2016, the Honorable Judge James Flannery, the Presiding Judge of the Law Division of the Circuit Court of Cook County, handed down a General Administrative Order 16-2 that specifies a new procedure for the setting of trial dates relative to cases pending in the Law Division. All cases currently pending in the   Continue Reading »

The Charging Party WILL See What You Are Saying

Employers should be aware that the Equal Employment Opportunity Commission (“EEOC”) has implemented a new nationwide procedure concerning the disclosure of a Respondent’s position statement to a Charging Party. For all position statements filed on or after January 1, 2016, in response to a request by the Charging Party or his or her representative during   Continue Reading »

Using the Affordable Health Care Act to Mitigate Future Medical Damages

In personal injury cases, is there a defensible strategy to significantly reduce claims for future medical damages through application of the Affordable Care Act?  Time will certainly tell, but it does appear possible. In its simplest terms, the Affordable Care Act (“ACA”) provides that all persons in the United States be afforded health insurance, regardless   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 »

Ransomware Attacks – Health Care Institutions an Emerging Target?

Several news media outlets are reporting a recent cyber-attack assault on Hollywood Presbyterian Medical Center in Los Angeles, California.  According to authorities, the hospital was the victim of a cyber-attack on February 5 that locked the hospital out of its computer systems using ransomware to infect their network. According to reports in this case, the unknown   Continue Reading »

Discovery Depositions Are Not Available for Media Use During Pending Litigation.

As you may have heard, Pam Zekman of CBS Channel 2 has run a television segment relating to a pending lawsuit against Palos Community Hospital.  In the segment, plaintiff’s counsel, Jim Ball, is interviewed along with the parents of a child that suffered brain damage after the hospital allegedly failed to properly treat the mother’s   Continue Reading »

Electronic Monitoring Comes to Illinois Nursing Homes

Lights! Camera! Electronic monitoring comes to Illinois nursing homes in 2016.  Shareholder Lynn M. Reid outlines the issues in a recent blog post.

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 »

Illinois Supreme Court Rejects Employee’s Direct Action Against Employer for Claimed Asbestos Related Illness

In a much anticipated opinion, on November 4, 2015 the Illinois Supreme Court found that the provisions of Illinois’ Workers’ Compensation Act and the Workers’ Occupational Diseases Act (“the Acts”) barred an employee from bringing a direct civil action against his employer for injuries allegedly caused by exposure to asbestos. In Folta v. Ferro Engineering,   Continue Reading »

Federal District Judge Upholds Chicago PD Rule Limiting Tattoos

In June of 2015, the Chicago Police Department (CPD) issued changes to its uniform policy. Under the new policy, on-duty CPD officers are required to cover tattoos on the hands, face, neck, and other areas not covered by clothing, with skin tone adhesive bandages or tattoo covers. Soon after the policy went into effect, three   Continue Reading »

Rapid Response to Data Breach Required to Avoid Liability

American companies have been slow to realize that they are a potential target of a cyber-attack.   Last year, FBI Director, James Comey remarked that “there are two kinds of big companies in the United States.  There are those who’ve been hacked….and those who don’t know they’ve been hacked…” But the risk of cyber-attack is not   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).

Cook County Ruling Expands Petrillo. Defense Counsel in a Pickle?

Given the serious penalties courts have imposed due to even trivial perceived Petrillo violations, all defense counsel should be on high alert in the wake of a recent Cook County ruling further expanding the rule in Petrillo v. Syntex Laboratories. William McVisk explains here.

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 »

Protection Reflection: The Supreme Court Rules Allow Partners to Limit Their Liability

The future ain’t what it used to be. — Yogi Berra Many lawyers are still unaware that effective July 1, 2003, our Supreme Court promulgated rules which conferred protection from professional liability in certain circumstances. Illinois Supreme Court Rules 721 and 722 allow lawyers in Illinois to protect themselves against vicarious liability for legal malpractice   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 »

The Continuing Controversy Over Custody Rights to Frozen Embryos in Illinois

As assisted reproduction technology continues to outpace the law intended to regulate it, the Illinois courts are faced, for the first time, with the question of which gamete donor has superior custodial rights over surplus frozen embryos resulting from the in vitro fertilization process.  William G. Beatty’s article, discussing the Szafranski case, presently before the   Continue Reading »

Making Hotels Safer For Their Guests

Hotel guests have high expectations of luxury with respect to the services and products they receive during their stay at a hotel.  In particular, they have high expectations about the quality of their room and the customer service provided to them.  Hotel guests also expect excellent hotel safety and security.  But no matter how luxurious   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 »

Debt Collectors Beware: Venue Provision of FDCPA Reinterpreted

Neither a borrower nor a lender be …   -Shakespeare   Recent federal court decision reinterprets the Fair Debt Collection Practices Act (FDCPA) and may create venue defense for current or future debtor defendants in debt collection suits. In Suesz v. Med-1 Solutions, LLC, 2014 U.S. App. LEXIS 12562 (7th Cir. 2014), the Seventh Circuit recently reinterpreted 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 »

First District Illinois Appellate Court Allows For Direct Common-Law Action Against Employer For Asbestos-Related Disease

On June 27, 2014, in a case of first impression, the Illinois Appellate Court, First District, delivered a decision allowing an employee to sue his employer outside of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act (“the Acts”) where the employee first learned of his injury after the expiration of the statute of   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 »

HACKER PREVENTION: KEEPING CLIENT-SENSITIVE ELECTRONIC INFORMATION CONFIDENTIAL

I’ve looked at clouds from both sides now   From up and down and still somehow       It’s cloud’s illusions that I recall      I really don’t know clouds at all …                       Judy Collins Back in July of 2011, we warned of a then popular e-mail/fraudulent check scheme whereby lawyers would receive e-mails from alleged potential   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 »

RECENT DEVELOPMENTS WITH ILLINOIS EMPLOYEE CLASSIFICATION ACT

On May 27, 2014, the Illinois Supreme Court resolved the issue of whether the Illinois Employee Classification Act was unconstitutional due to alleged defects in procedure. The Act, which is directed at the classification of construction employees, became effective on January 1, 2008 to address the practice of misclassifying employees as independent contractors. Consistent with   Continue Reading »

NOT ONLY SHAREHOLDERS GET PIERCED

Omittance is no quittance.          Shakespeare How many lawyers assist a client in forming a corporation, but merely assist in filing the annual reports and do nothing else?  Failure to advise of the risk associated with this minimal approach may now more likely result in veil-piercing to reach the client for individual   Continue Reading »

Will Your Independent Contractors Come Back to Haunt You? Illinois Supreme Court Upholds the Illinois Employee Classification Act

On May 27, 2014 the Illinois Supreme Court issued a modified opinion in Bartlow v. Costigan, 2014 IL 115152 (Ill. 2014). The case involved constitutional challenges to the Illinois Employee Classification Act, 820 ILCS 185/1 et seq.  The opinion should give pause to any company employing independent contractors. The Plaintiffs in the case were the   Continue Reading »

Illinois Appellate Court Confirms Lender's Remedies in Mortgage Foreclosure Action

A recent Illinois Appellate Court decision from the first district settled the question of whether or not a party to a mortgage may sue under the promissory note and separately under a mortgage foreclosure action.  The Court in Turczak v. First American Bank, 2013 IL App (1st) 121964 applied principles of res judicata to determine   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 »

ILLINOIS’ LIMITED LIABILITY IS UNLIMITED

In a case of first impression, a First District Panel of the Appellate Court of Illinois issued an opinion confirming immunity from liability arising from fraud under the Illinois Limited Liability Company Act (“LLC Act”) (805 ILCS 180/10-10). Careful lawyers must consider the Illinois law before forming an LLC in another state.  In Dass v.   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 »

Attorney Client Privilege: Dead Men Tell No Tales, But Their Agents Might

Estate planning often involves multiple professionals who must exchange confidential information regarding their clients’ affairs. The Illinois Court of Appeals provides an insightful opinion regarding when such privileges terminate, who can waive them after the client’s death, and what actions, if any, would put confidential information “at issue” and thus make discoverable.  (This article also   Continue Reading »

Are Plaintiff's Class Action Lawyers Already Setting Up Shop For Violations of New CFPB Rules?

New Rule Affects Title Companies, Lenders, Mortgage Brokers and Borrowers As Consumer Financial Protection Bureau Finalizes “Know Before You Owe” Mortgage Forms. A final regulation that combines mortgage disclosures required under the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA), finalized by the Consumer Financial Protection Bureau (CFPB), was released today. The   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 »

OSHA CLARIFIES REGULATIONS REGARDING "WALKAROUND REPRESENTATIVE"

Section 657(e) of the Occupational Safety and Health Act prescribes that employees have a right, subject to the Secretary of Labor’s regulations, to have a representative of their choosing accompany the OSHA compliance officer during a workplace inspection (a walkaround representative).  A prior letter of interpretation from Milan Racic to OSHA, dated March 7, 2003,   Continue Reading »

MODIFICATION TO FORM CONTRACT AND CONSTRUCTION MANAGER'S CONDUCT, COLLAPSES DEFENSE

On Aug. 16, 2013, the First District of the Illinois Appellate Court affirmed an adverse jury verdict entered against a construction manager and in favor of plaintiffs stemming from an accident on a construction project where the construction manager was not a constructor.  Liability was found based upon a modification to a standard American Institute   Continue Reading »

Self-Insured Retentions and High Deductibles: Their Impact on Insurers and Policyholders

In the current economic climate, first-dollar coverage has become a luxury that many commercial insureds can no longer afford. Although policies with large self-insured retentions and deductibles have always been available, they were frequently overlooked in the past when bottom lines were healthier and insurance premium costs were subject to less scrutiny. As more insureds   Continue Reading »

ILLINOIS APPELLATE COURT REVERSES TRIAL COURT: MADISON COUNTY ASBESTOS CASE DOES NOT BELONG IN ILLINOIS

In a decision that may have a significant impact upon asbestos litigation in Madison County, the Illinois Fifth District Appellate Court has recently overturned a trial court ruling against defendant’s Motion to Dismiss pursuant to the doctrine of forum non conveniens.  While there have been similar decisions in the Fifth District in the past, no   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 »

JURISDICTION OVER A FOREIGN DEFENDANT -- RECENT ILLINOIS DECISION WILL IMPACT COMPONENT PARTS MANUFACTURERS

I.  Synopsis Illinois Supreme Court in Russell v. SNFA, 2013 IL 113909 (April 18, 2013) finds specific jurisdiction over a foreign component part manufacturer, finding that its products were part of the marketing plan of the seller’s product.  What does this mean for component part manufacturers that have integrated marketing plans with the seller’s product?   Continue Reading »

PRODUCT LIABILITY CASE EVALUATION AND TRIAL STRATEGY CONSIDERATIONS - Part Three

In the final installment of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, focuses on the sole proximate cause argument in product liability cases – withdrawing all affirmative defenses and trying the case on damages alone. (Read Part One and Part Two) Trial Strategy: Withdrawal of Affirmative Defenses   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 »

ILLINOIS SUPREME COURT RULES THAT TCPA DAMAGES ARE INSURABLE

Since Congress passed the Telephone Consumer Protection Act (“TCPA”), 47 USC §227(b), courts have struggled to determine the extent to which insurance coverage is available for damages awarded under the act.  In Standard Mutual Ins. Co. v. Lay, 2013 IL 114617 (May 23, 2013), the Illinois Supreme Court removed any doubts that such damages are   Continue Reading »

MECHANICS LIEN ACT AMENDED - CYPRESS CREEK DECISION OVERTURNED

Illinois Governor Pat Quinn has signed into law House Bill 3636 overturning the Illinois Supreme Court’s decision in Cypress Creek.    On Feb. 25, 2011, a divided Illinois Supreme Court decided an important case affecting the priority of mechanics lien holders and construction loan lenders when the proceeds of a foreclosure sale are not sufficient to   Continue Reading »

OBAMACARE COMES TO CONSTRUCTION

Under President Obama’s Healthcare Reform Law (Obamacare), companies with 50 or more full-time employees/equivalents (FTEs) must provide their workers with health insurance in less than a year, or face tax penalties. Thus, it is imperative that government contractors implement a health insurance strategy now.  Contractors who bid and work on projects subject to prevailing wage   Continue Reading »

PRODUCT LIABILITY CASE EVALUATION AND TRIAL STRATEGY CONSIDERATIONS – Part Two

Following up his analysis of case evaluation and trial strategy in Part One of his three-part series, Johnson & Bell Shareholder, Charles P. Rantis, explores the potential benefits and challenges of using plaintiff’s contributory fault defenses in product liability cases. (Part Three) Trial Strategy: Defense Based on Plaintiff’s Contributory Fault The extent to which plaintiff’s   Continue Reading »

A COOK COUNTY FIRST MUNICIPAL DEPARTMENT PRIMER

Many lawyers have found themselves slightly confused while appearing in courtroom 1501 of the Richard M. Daley Center for the first time.  Courtroom 1501 is responsible for handling all First District Municipal cases in which a jury demand has been filed. These cases are typically personal injury lawsuits arising from motor vehicle accidents.  Unlike the   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 »

"SPECIAL CIRCUMSTANCES" AND A CLAIM OF SPOLIATION OF EVIDENCE

In the recent Supreme Court case Martin v. Keeley & Sons, Inc., the plaintiffs were performing construction work on a bridge when the concrete I-beam they were standing on collapsed and they fell into a creek below. 2012 Ill. LEXIS 1501. The day after the accident occurred, the defendant destroyed the I-beam by breaking up the concrete   Continue Reading »

HOSPITALS’ LIABILITIES/RESPONSIBILITIES WHEN RESPONDING TO LAW ENFORCEMENT’S REQUEST FOR INFORMATION

Imagine that you are a hospital administrator.  Law enforcement shows up at the hospital with a grand jury subpoena or a request of some kind for information.  Can you comply? In many jurisdictions, if protected medical information is sought, when faced with a grand jury subpoena, the answer is no, despite penalties that may arise   Continue Reading »

GOV. QUINN SIGNS BILL FOR HIGHER FEES IN MED MAL CASES

On Jan. 18, 2013, Illinois Gov. Pat Quinn signed into legislation House Bill 5151, which increases the amount that plaintiff’s attorneys in medical malpractice cases can collect, while eradicating the right of these attorneys to petition trial courts for enhanced fees in certain cases. With the signing of the bill into law, plaintiff’s attorneys will   Continue Reading »

THE ILLINOIS SUPREME COURT CLARIFIES THE APPLICATION OF ARBITRATION AGREEMENTS IN NURSING HOME CONTRACTS

On September 20, 2012, the Illinois Supreme Court filed its opinion in the Carter v. SSC Odin Operating Co. case, 2012 IL 113204. In the case, the Court revisited the issue of whether arbitration agreements contained within nursing home contracts are enforceable. The Court upheld the general applicability of such agreements within the nursing home context but   Continue Reading »

EMAIL COMMUNICATIONS BETWEEN ATTORNEY AND EMPLOYEE ON EMPLOYER-ISSUED COMPUTER USING PERSONAL WEB-BASED ACCOUNT ARE PRIVILEGED

Employees’ use of personal email accounts (e.g., Yahoo, Gmail, etc.) on employer-issued computers is standard practice in most work environments.  These email accounts come with personal identifications and passwords that are generally only known by the employee.  What many employees do not realize is that copies of nearly every web page they visit on their   Continue Reading »

ILLINOIS SUPREME COURT PROVIDES (SOME) CLARITY ON START OF STATUTE OF LIMITATIONS FOR LOSSES BY INVESTORS

Determining the start date for any statute of limitations can be difficult.  This is particularly true in cases of alleged financial exploitation or fraud.  In such cases, the damages themselves can often be difficult to determine, let alone pinpointing the moment in time when they began.  In the recentKhan v. Deutsche Bank AG decision, the Supreme   Continue Reading »

HOUSE BILL 3636 WILL OVERTURN CYPRESS CREEK DECISION ON MECHANICS LIENS

On Febr. 25, 2011 a divided Illinois Supreme Court decided an important case impacting the priority of mechanics lien holders and construction loan lenders when the proceeds of a foreclosure sale are not sufficient to satisfy all claims.  The majority opinion, delivered by Justice Garman, was joined by Chief Justice Kilbride and by Justices Thomas,   Continue Reading »

THE ILLINOIS PREVAILING WAGE ACT ADDS TEETH

Recent changes to the Illinois Prevailing Wage Act (“IPWA”) and the law interpreting it have broadened its reach and toughened the requirements and penalties such that contractors and governmental bodies must become aware of these changes.  The IPWA was designed to ensure that laborers on public works projects were paid as much as the local   Continue Reading »

UNITED STATES COURT OF APPEALS FOR SEVENTH CIRCUIT AFFIRMS OSHA CITATION BASED ON EVIDENCE THAT WHILE CONSIDERED "SUBSTANTIAL" WAS NEITHER PRECISE, ACTUAL OR CONSIDERABLE

K.S. Energy Services, LLC v. SOLIS, 2012 U.S. App. Lexis 25442 On December 13, 2012, the United States Court of Appeals for the Seventh Circuit affirmed a repeat violation citation issued by OSHA to KS Energy Services, LLC in connection with its purported failure to comply with OSHA’s 1926 Subpart P: Excavations Requirements for Protective   Continue Reading »

IMPORTANT INSURANCE COVERAGE CASES FOR CONTRACTORS

Introduction Insurance coverage issues arise in almost all construction cases.  Several rather recent cases that have a direct impact on tenders of defense and pursuit of coverage from subcontractors have been decided and two of them are discussed in some detail below.  First in Westfield Ins. Co. v. FCL Builders, the First District of the   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 »

PROBABLE CAUSE FOR ARREST VS. PROBABLE CAUSE TO INITIATE CRIMINAL PROCEEDINGS - HOW THE STANDARD DIFFERS BASED ON THE CLAIM

In federal civil rights litigation, two of the most common claims brought against police officers and municipalities are those for false arrest and malicious prosecution.  For a plaintiff in a false arrest case to prove his claim, he must show, among other things, that the defendant police officer who arrested him did not have probable   Continue Reading »

MINNESOTA COURT ALLOWS RETROACTIVE EXCEPTION TO CONSTRUCTION STATUTE OF REPOSE

The Minnesota Supreme Court recently rendered a decision that has serious potential consequences for contractors working in Minnesota, and for contractors working in other States if those States follow suit. The 2007 collapse of the I-35 bridge in Minneapolis resulted in 13 deaths. Despite a statutory $1 million limitation on its liability, the state of   Continue Reading »

THE CHALLENGES OF LEGACY EQUIPMENT

American and European product manufacturers face many challenges operating in the international marketplace.  Foremost is the product liability lawsuit, which can challenge a manufacturer’s every decision, from the design and development stage, through sale of the product, and even for an undefined period thereafter.  A manufacturer’s potential liability for legacy equipment, i.e., older or prior   Continue Reading »

INSURERS BEWARE: ILLINOIS' FIFTH DISTRICT SCRUTINIZES POLICY LIMIT SETTLEMENT ISSUES

On May 22, 2012, Illinois’ Fifth District issued an opinion that insurers across the state should take immediate notice.   The opinion, entered in Kirk v. Allstate Insurance Co., No. 5-10-0573 (Ill. App. 5th Dist. 2012), highlights the importance of securing proper releases which fully protect their insureds from personal liability in matters involving policy limit payments.   Continue Reading »

Product Liability Case Evaluation and Trial Strategy Considerations -- Part One

In the first of three installments of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, explores the critical importance of weighing intangible factors of a given case.  He argues that these factors can impact defense counsel’s trial strategy and tactics as much as a mathematical methodology assessment of   Continue Reading »

"BAD FAITH": WHAT DOES IT MEAN? AN OVERVIEW OF BAD FAITH/FAILURE TO SETTLE THIRD PARTY ACTIONS UNDER ILLINOIS LAW

You are an insurance claims representative attending a pre-trial settlement conference in a medical malpractice lawsuit. The plaintiff’s attorney makes a demand that is within policy limits, but you consider it unreasonable and not consistent with the nature of the injury claimed. You make an offer that is more consistent with your assessment of the   Continue Reading »

SOMETIMES DOING LESS IS BETTER - ANWAR OSHANA V. FCL BUILDERS, INC., ET. AL

In early 2012, the Illinois Appellate Court held that an off-site steel fabricator could not be held liable for an injury to an employee of its subcontractor because it did not retain supervisory or contractual control over its subcontractor’s steel erection work.  In rendering its decision, the Illinois Appellate Court determined that the conduct of   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 »

HOLD ONTO YOUR HARDHATS: 2011 Brings Major Changes to the Illinois Workers’ Compensation Act

In 2011, the Illinois Workers’ Compensation Act was significantly revised.  While all of the changes are worth a thorough review, this article will summarize some of the major reforms, which have the greatest significance to the construction industry. There are often disputes between an employer and its employee as to what constitutes reasonable and necessary   Continue Reading »

PRODUCT MANUFACTURERS' POTENTIAL LIABILITY FOR USERS' ALTERATIONS OF THE PRODUCT

Under Illinois law, a manufacturer’s liability for an allegedly defective product is determined by the condition of the product at the time that it left the manufacturer’s possession and control. Augenstine v. Dico Co., 135 Ill.App.3d 273, 481 N.E.2d 1225 (1985). Defects existing in the product at the time it leaves the manufacturer’s possession and   Continue Reading »

NIOSH LENDS HELPING HAND TO NAIL GUN USERS

Nail guns are efficient and convenient to use.  However, they’re also sending users to the emergency room.  According to the U.S. Centers for Disease Control (CDC) and Prevention, 37,000 people each year are treated for nail-gun injuries, with foot and hand punctures being the most common. While construction workers account for just over half of these   Continue Reading »

RECENT NORTHERN DISTRICT DECISION IMPACTS CONFLICT OF INTEREST CASES IN ILLINOIS

When Does a Conflict of Interest Exist Between an Insurer and Its Insured Under Illinois Law? Under Illinois law, when a conflict of interest exists between an insurer and its insured, the insurer must decline to defend the insured and, instead of participating in the defense, the insurer must pay for independent counsel for the   Continue Reading »

THE SEVENTH CIRCUIT CONFIRMS THE REQUIREMENT FOR EXPERT TESTIMONY UNDER THE "CONSUMER EXPECTATIONS" TESTS

A recent opinion from the United States Court of Appeals for the Seventh Circuit affirmed a district court’s order granting summary judgment in favor of a defendant-manufacturer when the plaintiffs failed to present expert testimony in support of their design defect case, prosecuted under the “Consumer Expectations” test. In Show v. Ford Motor Co., 2011 U.S.   Continue Reading »

THE NEXT GENERATION OF LEED

The U.S. Green Building Council (USGBC) is in the process of LEED 2012 development. The proposed changes focus on increasing the technical rigor of the rating system and expanding the market sectors that are able to use LEED.  According to the USGBC, the proposed technical changes have been developed based on market data, stakeholder ideas,   Continue Reading »

JOHNSON & BELL NEWS OF NOTE

Practice group co-chair and shareholder Kevin G. Owens recently presided as Chairman of the ALFA International Product Liability Practice Group at the group’s seminar in Nashville, Tennessee.  The program, “Is the Next Verse the Same as the First…or Has the Tune Changed,” presented a variety of timely topics, including Enforcement of Indemnity Agreements with Foreign   Continue Reading »

THE PECULIARITY AND RELEVANCE OF RESPONDENTS IN DISCOVERY

In recent years, plaintiff attorneys in medical malpractice lawsuits have increasingly utilized the statute allowing for respondent in discovery (RID).  735 ILCS 5/2-402 involves persons and entities designated as RIDs.  However, RIDs are not parties.  RIDs are identified in complaints and are required to participate in discovery, including answering written discovery and sitting for a   Continue Reading »

LAW UPDATE: TRANSFER ON DEATH JUST BECAME EASIER IN ILLINOIS

Effective January 1, 2012 – HB 1153 (Bradley/Wilhelmi) P.A. 97-0555 creates the Illinois Residential Real Property Transfer on Death Instrument Act. The Act will establish procedures for the non-testamentary transfer of residential real estate upon the death of the owner. The act defines Residential real estate to include one to four housing unit properties; condominium   Continue Reading »

ILLINOIS SUPREME COURT APPOINTS MARCONI TO ADVISE DISCOVERY COMMITTEE

Effective January 1, 2012, the State of Illinois’ Supreme Court appointed Johnson & Bell, Ltd. Shareholder Joseph R. Marconi as Advisor to the Judicial Conference Committee on Discovery Procedures.  Mr. Marconi is the chair of the Business Litigation/Transactions group at the firm. The Committee is comprised of circuit and appellate court judges from around the state and   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 »

CHICAGO TO RESHAPE MINORITY CONTRACTING

Chicago Mayor Rahm Emanuel recently announced plans to carve out construction projects under $3 million for small businesses and give city contractors credit for the minority hiring they do in the private sector under a plan to bolster minority contracting.  Instead of maintaining the legally shaky “Target Market” program that allows minorities and women to   Continue Reading »

PROOF WITHOUT A "PROOF OF LOSS"

Any insurance policy you come across these days will contain a suit filing deadline, but in Illinois that deadline is more often than not tolled by section 143.1 of the Illinois Insurance Code.  215 ILCS 5/143.1 (West 2006).  Section 143.1 is a statutory restriction on contractual limitation provisions that was designed to prevent insurance companies   Continue Reading »

UNITED STATES SUPREME COURT DECISION ON FEDERAL PREEMPTION AIDS GENERIC DRUG MANUFACTURERS

On June 23, 2011, in a 5-4 decision, the United States Supreme Court held that federal statutes and FDA regulations governing the labeling of generic drugs preempt state law tort claims against generic drug manufacturers for failure to provide adequate warning labels.  In Pliva, Inc., v. Mensing the court determined that it was impossible for   Continue Reading »

THE ILLINOIS SUPREME COURT EXAMINES THE RISK-UTILITY TEST IN DESIGN DEFECT CASES

A recent Illinois Supreme Court ruling of major significance examines the risk-utility test as a method of proof in product liability cases premised on a design-defect theory.  The holding in the case, which includes a rejection of a post-sale duty to warn, merits the special attention of the product liability defense bar. Jablonski v. Ford Motor   Continue Reading »

RECENT U.S. SUPREME COURT DECISIONS ON PERSONAL JURISDICTION BENEFIT FOREIGN PRODUCT MANUFACTURERS

The first step in any litigation involving a corporate defendant that is foreign to the selected forum is determining whether the court can exercise jurisdiction over the defendant.  There are two different types of personal jurisdiction that a court can exercise over a defendant – general and specific.  A state court may assert general jurisdiction   Continue Reading »

PRESSURE ULCERS: AVOIDABLE OR UNAVOIDABLE?

Skin breakdown or pressure ulcers are a common topic in geriatric litigation across the country.  These cases are not just found in the realm of nursing home litigation.  At an increasing rate, plaintiff’s attorneys are filing wound cases against anyone who may have cared for the wound which can include:  long term care facilities, assisted-   Continue Reading »

Nursing Home's Health Care Arbitration Agreement Held Invalid...

… But Door Left Open for Future Arbitration Agreements to be Upheld On Aug. 18, 2011, the Fifth District Court of Appeals held that the arbitration agreement at issue in this Illinois Nursing Home Care Act and Wrongful Death case was invalid as it lacked mutuality making it unenforceable.  However, the court left the door   Continue Reading »

THE SUPREME COURT EXAMINES REMEDIES FOR EMPLOYER MISREPRESENTATION IN THE MODIFICATION OF ITS PENSION PLAN

In November of 1997 the insurance giant, CIGNA, sent to its employees a newsletter announcing that during the following year it would implement changes to the nature of the company’s pension plan.  The existing pension plan provided a retiring employee with a “defined benefit” in the form of an annuity purchased by the company that   Continue Reading »

IT OCCURRED, SO THERE IS AN "OCCURRENCE", RIGHT? NEW ILLINOIS APPELLATE COURT DECISION GIVES DIRECTION ON MEANING OF "PROPERTY DAMAGE" AND "OCCURRENCE" IN COMMERCIAL GENERAL LIABILITY POLICIES

Lawsuits against contractors often allege defective workmanship and subsequent damage to a structure and/or damage to property within that structure. Commercial general liability policies are not always clear, however, in just what kinds of damage would be covered in such scenarios. Obviously, the definition of terms such as “property damage” and “occurrence” within the language   Continue Reading »

REVISIONS TO OSHA STANDARDS REGULATING SLINGS CLARIFIES COMPLIANCE WITH LOAD CAPACITY REQUIREMENTS

Prior to June 8, 2011, The U.S. Department of Labor’s Occupational Safety and Health Administration Standards regulating load capacities for slings were pursuant to tables developed and based on the 1971 ANSI B30.9 Standards.  In revising the standards, OSHA found that the load-capacity tables contained duplicative, inconsistent and outdated information that confused compliance requirements.  The   Continue Reading »

FIRST DISTRICT REVISITS COOPERATION ISSUES IN RECENT THIRD PARTY LIABILITY CASE

Illinois’ First District in Founders Ins. Co. v. Shaikh, 405 Ill.App.3d (1st Dist. 2010) recently examined various issues and obligations surrounding the duty to cooperate in a third- party liability defense case.  Specifically, the Shaikh decision highlights the existence of dual cooperation obligations placed on the insurer and the insured, and provides a fairly detailed historical overview of   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 »

PRESS RELEASE: CONSTRUCTION FATALITIES DECLINE BY NEARLY 10 PERCENT BETWEEN 2009 AND 2010 AS INDUSTRY CONTINUES FOCUS ON WORKPLACE SAFETY

Industry-Led Efforts Contributed to Nearly 40 Percent Reduction in Fatalities Since 2006 The number of construction fatalities declined by nearly 10 percent between 2009 and 2010, and by almost 40 percent during the past five years, according to an analysis of new federal data prepared by the Associated General Contractors of America. Association officials pointed   Continue Reading »

ILLINOIS SUPREME COURT RULING BRINGS TORT IMMUNITY ACT BACK TO FULL STRENGTH

Over the years, the protections afforded to municipalities and public employees by the Illinois Tort Immunity Act have eroded somewhat due to various decisions extending the willful and wanton conduct exception found in 745 ILCS 10/2-202 to other provisions of the act.  For instance, in Doe v. Calumet City, 161 Ill.2d 374 (1994), the Illinois Supreme Court   Continue Reading »

SEVENTH CIRCUIT BARS PLAINTIFFS LAST MINUTE CHANGE IN THEORY OF PRODUCTS CASE

In Aldridge v. Forest River, Inc., et al., 635 F.3rd 870 (2011), plaintiff filed a strict product liability lawsuit arising out of injuries allegedly sustained while the plaintiff was descending the steps of her recreational vehicle.  Throughout the course of the litigation, plaintiff had maintained that it was a step controller, installed on the vehicle, which   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 »

HEALTH PROFESSIONAL REPORTS UNDER 735 ILCS 5/2-622: FIRST DISTRICT APPELLATE COURT DECISION FURTHER CLARIFIES STATUTORY REQUIREMENTS IN CHRISTMAS V. DR. DONALD W. HUGAR, LTD., ET AL.

The much-publicized 2010 Illinois Supreme Court ruling in LeBron v. Gottlieb Memorial Hospital is most well-known for its impact on Illinois’ efforts at tort reform.  However, this decision also served to change, and in some critics’ minds further complicate, Illinois law on the issue of the requirements of 735 ILCS 5/2-622.  Recently, in an effort to further   Continue Reading »

"LEGACY" EQUIPMENT - WHAT IS THE MACHINE MANUFACTURER'S DUTY ONCE THE MACHINE LEAVES THE PLANT?

The answer to the question: “what is a product manufacturer’s duty” relative to its products once they leave the plant, is not one that is easily answered.  In Illinois, a manufacturer has no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control.  To the   Continue Reading »

SUPREME COURT FURTHER ERODES FEDERAL PREEMPTION DOCTRINE

In the recent case of Williamson v. Mazda Motor of America, 562 U.S.__(2011), the United States Supreme Court has held that the 1989 version of Federal Motor Vehicle Safety Standard 208 (FMVSS 208) giving vehicle manufacturers a choice to install either a lap belt or a lap and shoulder belt in a rear inner seat of a motor   Continue Reading »

Johnson and Bell

Johnson and Bell