Category Archives: Employment Law

Illinois Appellate Court Holds That Two Years of Continuous Employment Necessary to Enforce Restrictive Covenants

In a very significant ruling, the Illinois Appellate Court has held that in order to enforce a restrictive covenant against an employee, the employee must work for the employer for at least two years continuously following execution of the document.  Restrictive covenants are often used by employers to bar an employee for working for a competitor or even working in the same field for a specified period of time in the event that the employee separates his employment from the employer.  Oftentimes, this restriction places a huge burden on the employee, freezing him out of legitimate work opportunities.  On the other hand, the employer often contends that it has legitimate business interests to protect and would be damaged if the employee left and took his knowledge with him to a competitor.  Court in the past had suggested that one year of post-employment was necessary.  It should be noted that this opinion was issued by one district of the appellate court (covering the Chicago area) and is not binding statewide; however, it is likely to be very influential in litigation in this area.

Supreme Court Decides Who Is A Supervisor

In resolving a conflict between the federal circuits, the high court determined who constitutes a supervisor for purposes of employment discrimination cases.  Maetta Vance accused a co-worker, Davis, of racially harassing her and retaliating against her at her employment at Ball State University in 2005.  She sued the school under the Civil Rights Act of 1964, claiming that the school should be responsible since Davis was a supervisor.  A federal judge dismissed her claim, holding that Davis could not fire her since she was only a co-worker.  The Seventh Circuit Court of appeals upheld the ruling.   Vance appealed to the Supreme Court.  The Supreme Court sided with the lower courts, ruling that for the university to be liable, Davis must have had the authority to "hire, fire, demote, promote, transfer, or discipline" Vance.  While a disappointment for the employed, the decision will no doubt provide greater clarity in litigating these cases.

Supreme Court Makes It Harder to Recover In Retaliation Cases

In a recent U.S. Supreme Court opinion, the high court raised the bar in litigating retaliation claims.  Dr. Naiel Nassar was employed by the University of Texas Southwestern Medical Center.  He complained of harassment and left his job in 2006 for another job at Parkland Hospital.  The hospital, however, withdrew its job offer when one of the former medical center supervisors opposed it.  He filed suit for retaliation and his claim went to trial.  The jury awarded him $3 million.  The Medical Center appealed, contending that the trial judge improperly charged the jury with a "mixed-motive" instruction, meaning that the jury could find in favor of the Plaintiff if it concluded that retaliation was a motivating factor in his discharge.  The Medical Center argued that the district court should have given a jury instruction stating that the Plaintiff's former employer could only be held liable if the supervisor's decision was the "but-for" basis for the retaliation.  The high court agreed, and reversed the jury verdict.  The court did not rule upon the merits of the case, but sent the case back down for further reconsideration in light of its ruling.  This opinion is in line with the Supreme Court's approach taken in age discrimination cases.  Several years ago, the high court ruled that in age cases, liability would only attach if age was the "but-for" reason taken for a discriminatory action.

Federal Court Paves the Way For Employee to Puruse FMLA Claim Against Non-Employer

In perhaps a case of first impression, a federal district court judge has refused to throw out a lawsuit against a non-employer involving an FMLA claim.  Luis Arango worked for Sysco, a marketer and distributor of food service products.  Work & Well administered time off requests for the company's employees.  Arango claimed that Work & Well falsely told him that he was ineligible for part of the leave, prompting Sysco to fire him.  The court held that Arango was not shielded from the consultant's privilege (which would ordinarily shield it if it gave good faith advice) since there was enough evidence that the defendant did not give honest advice to Sysco.  Work & Well promised to "ensure consistent, complete FMLA compliance" in its contract with Sysco.  The evidence also showed that Work & Well also promised to reduce the number of FMLA leaves and the days off associated with those leaves.  The court did not rule on the merits of the claim, but with the ruling, the case can now proceed to trial.

Federal Judge Rules That Comcast Handbook Provided Agreement for Wages

United States District Court Judge James Holderman recently ruled in a lawsuit brought against Comcast Corp.  that its employee handbook provided an agreement between the company and its employees for certain wages due under the Illinois Wage Payment and Collection Act.  The company moved to dismiss the claim, but the court ruled against it.  Comcast argued that the handbook contained a disclaimer, stating that the handbook could not be considered a contract of employment.  The court acknowledged the disclaimer, but stated that there was a difference between a contract and an agreement.  An agreement between the two parties, even in the absence of a contract, could provide a basis for a claim for wages.  The class action lawsuit will likely take some time to resolve.  In 1990, the Illinois Supreme Court ruled in a lawsuit brought against St. Mary of Nazareth Hospital that a handbook could constitute a contract of employment between a company and an employee under certain circumstances.  If found to be an enforceable contract, the employee may have a claim for breach if the employer fails to follow it.  An employer which utilizes such a handbook can negate the existence of a contract if it employs a sufficiently clear disclaimer prominently displayed in the manual.  Whether a court will find that the disclaimer is sufficient is dependent upon the language used and how the disclaimer is set off from the substantive provisions in the handbook.

Illinois Facebook Bill Causes Problems For Management Side Attorneys

As of January 1, 2013, it will be unlawful for an employer to demand that an employee turn over social network passwords or to demand access to their accounts.  Known as the "Facebook bill," employment attorneys who represent companies are complaining that it will hinder their ability to monitor claims of sexual harassment or otherwise defend wrongful termination or discrimination claims.  Before an aggrieved employee can call out their employer on the issue, the employee will have to contact the Department of Labor.  We would expect that prosecution of employers for violations will be very slow.

EEOC Lawsuits Hit Record 20 Year Low

Despite a troubled economy, and counter to conventional wisdom, the federal agency which monitors workplace discrimination, the EEOC, reported that it filed 122 lawsuits nationally for its fiscal year ended September 30.  This figure is far less than usual.  The agency prosecutes workplace violations involving age, race, national origin, gender, pregnancy, sexual harassment, retaliation, and disability discrimination.  The EEOC does not have jurisdiction to prosecute claims that arise under the Family and Medical Leave Act, or FMLA.  Apparently, the agency is focusing on systemic or widespread areas of discrimination, as opposed to pursuing single instances of civil rights violations.  Since 1992, except for one year, the EEOC has filed at least 200 lawsuits.  According to the EEOC's website, it filed an average of 333 lawsuits annually since that time.  Regardless, this number is a fraction of the charges of the total number of charges of employment discrimination filed annually.  For fiscal year 2011, 6,098 charges of employment discrimination were filed in Illinois alone.  Thus, most of the time, aggrieved employees need private attorneys to prosecute their employment discrimination claims on their behalf in court.

Mayor Emanuel Attempts to Expand City Whistleblower Ordinance

Mayor Rahm Emanuel has drafted an expansion of the current City of Chicago ordinance prohibiting retaliation against whistleblowers.  Since it was first enacted in 2004, the law only protected city employees from being retaliated against for making complaints about corruption.  Under the new proposal, the law would cover anyone who applied for a city permit, license, certification, financial benefit, city service, or employment and suffered retaliation for exposing wrongdoing.  The remedies for proving a violation of the law include reinstatement, an award of double backpay, and restoration of lost seniority rights.  There are certain limitations under the ordinance, however.  An aggrieved individual must file a claim notice within 30 days, and then file suit in the Circuit Court of Cook County within 6 months if the claim did not resolve.  The state of Illinois also has protection for whistleblowers.

Federal Court Holds End of Life Trip Protected Under Family and Medical Leave Act

The Hollander Law Offices was successful in resisting a summary judgment motion involving a case of first impression within the federal court of the Seventh Circuit involving an issue with the Family and Medical Leave Act, (FMLA). Sarah Ballard, who was suffering from end-stage congestive heart failure, was given a trip to Las Vegas by a charitable group.  Her daughter, Beverly, an employee of the Chicago Park District, accompanied her on the vacation.  Ms. Ballard claimed that she asked her supervisor about a month before the trip to use leave pursuant to the FMLA, so that she could go with her mother.  Ms. Ballard faxed a request to him a few weeks later when the supervisor failed to acknowledge her request.  The supervisor denied that the conversation took place, and then denied her request on the mistaken belief that she was seeking personal time off.  Ms. Ballard claims that she tried to reach the supervisor several times by phone.  She went on the trip and was assured that everything would be OK assuming that she completed the paperwork.  The Park District then terminated her employment for being absent from work.  Ms. Ballard filed a lawsuit in federal court alleging that her FMLA rights were interfered with.  The Park District filed papers to have her claim dismissed.  The FMLA allows employees to take a maximum of twelve weeks per year to "care for" a family member or close relative who is seriously ill.  Federal District Court Judge Edmond Chang denied the Park District's Motion, noting that Sarah Ballard suffered from a covered serious health condition and further reasoned that the FMLA does not set narrow restrictions on the type of care which the employee provides.  The Court observed that Ms. Ballard routinely provided physical care to her at home, including, but not limited to, providing meals, removing fluids from her heart, and giving her insulin shots.  The Court noted that the employee does not have to directly administer medical treatment and that Ms. Ballard provided care to her when they went to Las Vegas.  Attorney Paul Ryan stated that his client is pleased with the Court's ruling.  The Park District has since filed papers seeking an immediate appeal on this issue to the Seventh Circuit Court of Appeals.

Seventh Circuit Finds That the Word Bitch Can Be Actionable In Sexual Harassment Claim

In a recent federal appellate court opinion, the Seventh Circuit Court of Appeals held that the word bitch, in context, could be actionable as sexual harassment.  The plaintiff was a deputy director of the Day Reporting Center of the Cook County Sheriff’s Department.  She held this position for five years.  She claimed that her supervisor, John Sullivan, subjected her to sexual harassment and that she was fired because of her sex.  A jury found in Plaintiff’s favor and awarded her a total of $4.1 million.  Post-trial, the district court granted dismissed the case.  The County argued that the Sheriff’s General Order 3.7A set forth its sexual harassment policy and the procedures for handling complaints and investigations.  The Order also provided a formal complaint form for a complaining employee to give to her supervisor.  The form was not specific, but asked a complainant to briefly summarize the circumstances giving rise to the claim.  In turn, the supervisor receiving the report was to forward it to the Inspector General’s office for review and investigation.  Plaintiff was familiar with the Order as she taught the policy to new recruits.  Plaintiff, however, did not fill out the form regarding her complaint.  The jury heard evidence from the former director of internal affairs that an aggrieved employee could complain about sexual harassment in any number of ways, including going to their supervisor, their supervisor’s supervisor, or directly to the Inspector General’s Office.  Plaintiff also testified that there was a difference between the official department policy and the unofficial departmental practice – Plaintiff testified that in actuality, if you made a complaint, you would be demoted.  Plaintiff backed up her testimony with specific evidence.  She testified that when discussing another employee’s complaint of sexual harassment, Sullivan told her that, “he just wanted this to go away.”  Plaintiff testified with respect to her complaint, she sent a detailed letter to the sheriff’s outside counsel, who forwarded the complaint to the Inspector General.  Plaintiff provided specific information in her letter, including providing the remarks made by Sullivan, “I said shut up – you Lying Bitch.”  Plaintiff also complained to Carmalita Wagner, the executive director of the Sheriff’s training academy.  Wagner told her that she needed to “take one” for the Sheriff.  The Court reversed, reasoning that the defendants did not satisfy their burden of showing the effectiveness of their formal policy.  The Court stated that “at the end of the day, the critical question before the jury was whether the Sherriff’s Department was put on notice of the misconduct, ‘not how the employer came to have that knowledge.’”  General Order 3.7A was not the only way an employee could raise a complaint of sexual harassment in the Sheriff’s Department.