Company Fires Employee for Attending Birth of His Son

A New Hampshire company, Salerno Protective Services, recently allegedly terminated employee Lamar Austin for missing work. The reason he missed work? He wanted to be with his wife while she went into labor and had their son. Soon after the healthy baby was born, Austin received a not-so-congratulatory text from his employer: “As of now, you are terminated.”

Balloons

Illinois, like New Hampshire, is an at-will employment state. In other words, employers can generally fire employees for any reason or no reason at all – so long as the company does not commit prohibited discrimination, retaliation, or violate some other specific state or federal law. Unfortunately, that means a company may be legally entitled to terminate a worker who has the audacity to attend the birth of his son.

There are a few laws that may turn this situation into a wrongful termination. For example, the Family and Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of leave for the birth of his or her child, and to care for the newborn child. The law allows both the father and mother to take leave. However, keep in mind the FMLA generally only applies if the employer has 50 or more employees (and government agencies), the employee worked for over one year, and the employee worked at least 1250 hours in the preceding year. These requirements exclude many individuals from FMLA protections.

Luckily things seem to be turning out well for Austin. When local companies learned about the circumstances surrounding his termination, many business leaders reached out to him with job offers. A friend also started a GoFundMe Page in his honor, which has exceeded its $10,000 goal.

Hopefully Illinois and other states will enact laws to prohibit these types of terminations. These laws are often not enacted simply because most people think they are not necessary. It is common sense that an employer would not fire an employee simply for wanting to attend the birth of his or her child. People once thought laws prohibiting retaliation for reporting sexual harassment and prohibiting retaliation for grieving a deceased child were unnecessary because it didn’t happen. However, both types of laws have been enacted in Illinois, to combat the unusual employer that denies basic rights and decency to employees.

If you believe a company wrongfully terminated your employment, contact an experienced employment attorney immediately.

 

New Illinois Employment Laws Take Effect

Although Illinois enacts laws throughout the year, most statutes go into effect on January 1 of the coming year. There are almost 200 new laws passed in 2016 that have gone into effect this week. To bring us into the new year, below are the most important laws that went into effect this week that will impact Illinois employees:

Fireworks

Employee Sick Leave Act (PA 99-0841)

This Act, which I have previously discussed here, is likely the most important piece of legislation passed in 2016 that will benefit the greatest amount of Illinois employees. The law applies to every Illinois employer that provides sick leave to employees. If the company chooses to provide sick leave to employees to care for themselves, then it must also allow the employee to take sick leave to care for the employee’s sick or injured family members. The Act also prohibits employers from retaliating against employees for using sick leave under the act.

Domestic Workers’ Bill of Rights (PA 99-0758)

As I previously blogged about, this law provides workplace protections to “domestic workers,” which include housekeepers, nannies, and caregivers, among other individuals. The law provides domestic workers with many workplace protections to which most other professions are already entitled. This includes minimum wage and overtime, rest breaks, and protections against illegal discrimination.

Right to Privacy in the Workplace Act (PA 99-0610)

The legislature significantly amended the Right to Privacy in the Workplace Act. The Act clarifies that that employers are prohibited from requesting or requiring employees or applicants to authenticate or access a personal online account (such as a facebook or twitter account) in the presence of the employer.

Victims’ Economic Security and Safety Act (PA 99-0765)

The Victims’ Economic Security and Safety Act (VESSA), requires companies to provide employees leave if he or she has been a victim of domestic or sexual violence, or has a family member who is a victim. The previous version of the law only provided leave to employees who worked for companies which employed at least 15 or more employees. However, in 2016, the law was amended to allow leave for individuals regardless of the amount of employees.

The length of the leave period is dependent on the amount of the company’s employees. If the company employs more than 50 employees, the individual is entitled to 12 workweeks of leave during any 12-month period. If the company employs between 15 and 50 employees, the individual is entitled to 8 workweeks. If the company employs between 1 and 14 employees, the individual is entitled to 4 workweeks of unpaid leave.

Illinois Freedom to Work Act (PA 99-0860)

I have extensively blogged about Jimmy John’s inappropriate and unnecessary non-competes with low-wage employees. After several lawsuits against the companies, bad press, and settlements, Jimmy John’s is no longer able to use the impermissible non-competes on low-level employees. In addition, Illinois passed the Illinois Freedom to Work Act, which prohibits such non-compete agreements with individuals earning $13 or less.

These are the most important new Illinois employment laws affecting workers. I will continue to monitor and update you on important case law and legislative updates that affect Illinois workers, including the new and hotly disputed federal overtime rule. If you think any Illinois workplace laws have been violated, contact an attorney immediately.

Illinois Reaches Settlement with Jimmy John’s

Jimmy John’s recently required its Illinois employees to sign highly restrictive non-compete agreements. These agreements would effectively prevent the individuals from working at most food-related companies in the nation. The company’s actions were so egregious Illinois passed a law prohibiting employers from using non-compete agreements for employees earning $13 or less per hour.

Illinois’ Attorney General, Lisa Madigan, also filed suit against the Corporation for unfair labor practices. In essence, the lawsuit claims the company forced its employees to sign the non-compete agreements, knowing they were unenforceable, in an attempt to chill any effort by employees to consider leaving for another employer.

This week, the Illinois Attorney General and Jimmy John’s reached a settlement in the case. The company settled the case with Illinois for $100,000, and further agreed to:

  • notify all current and former employees the agreements are non-enforceable;
  • rescind any non-competes used based on the unenforceable agreement;
  • remove all non-compete from the new-hire process; and
  • comply with Illinois law regarding non-competes in the future.

Unfortunately, instead of using non-compete agreements to protect a legitimate business interest, companies are increasingly using the documents to simply dissuade employees from working someone else. Courts are clear that simply using a non-compete to discourage an employee from quitting or working for a competitor are not in-and-of-themselves legitimate business interests for purposes of non-compete agreements. If you have signed a covenant not to compete or other business agreement, it is highly advisable to speak with an attorney to learn your legal rights.

 

BREAKING: Federal Judge Blocks New Overtime Rule

I have previously blogged about the new Department of Labor (DOL) Overtime Rule that is set to go into effect on December 1, 2016. Put simply, the rule will require many employees paid a salary of less than $47,476 to be paid overtime at a rate of time-and-one-half for all hours worked over 40 in a given week. Currently, many employees who are paid a salary of at least $23,660, and meet other job duty requirements, are exempt from overtime pay.

On Tuesday, Judge Amos L. Mazzant III, a United States District Court Judge for the Eastern District of Texas, issued a preliminary injunction preventing the DOL’s rule from going into effect. The Judge partly found the rule cannot take effect because the increased salary basis amount of $47,476 was too high. The Court found the DOL must base the overtime exemption requirements on numerous factors, such as meeting certain job duties (see here). However, by increasing the salary basis minimum to the amount that it did, the DOL changed the overtime exemption test to a “de facto salary-only test.” Keep in mind, Judge Mazzant only granted a preliminary injunction, which may change when it comes time for the Court to make a final determination on all the evidence produced during discovery and trial.

As of this second, the overtime rule will not go into effect December 1, 2016, and the current overtime exemption tests remain in place. This includes the $23,660 salary basis requirement for certain types of employees. The Department of Labor is almost certain to appeal the Court’s order. This firm will keep everyone up-to-date on any appeals, decisions, or legislation affecting the ability for workers to earn overtime compensation at their jobs.

Illinois Sick Leave Rights

An employee was recently terminated from the Eric County Sheriff’s Department (in the state of New York) for allegedly abusing her sick leave time. The employee was caring for her husband who has fourth-stage esophageal cancer. She previously banked around 700 hours of sick time, but already went through those hours. She also says that she provided her employer doctor’s notes stating she has severe fatigue, headaches, and depression. Her superiors at the Sheriff’s Department, who just unveiled a pink-wrapped patrol car to support breast cancer awareness, terminated her employment partly on the basis of abusing sick leave. Although the facts in this case are disputed (and may be litigated in the future), this brings up the question of what rights Illinois employees have when it comes to sick leave.

Sick

Illinois Sick Leave Law

There are no federal or Illinois state laws that require employers of any size to provide employees sick leave. However, once employers offer the leave, workers may be entitled to certain rights and benefits under Illinois law. For example, a company that promises leave to employees, either through a contract, handbook, or other policy, but fails to provide it may be liable for a breach of contract or Illinois Wage Payment and Collection Act claim. See Grant v. Board of Education, 282 Ill. App. 3d 1011 (1996).

In addition, the legislature recently passed the Illinois Employee Sick Leave Act, which goes into effect January 1, 2017. The law requires employers who already offer sick leave to allow employees to use the leave to care for a sick or injured family member. Employers cannot retaliate against an employee for using or attempting to use leave under the act, or opposing an employer that does not provide leave pursuant to the act.

There are certain municipalities within Illinois that do require employers to offer sick leave. For example, the Chicago Paid Sick Leave Ordinance, passed earlier this year, requires Chicago employers to provide eligible employees up to 40 hours of paid sick leave every 12 months of employment. Individuals must perform a minimum of 2 hours of work for the employer in Chicago within a 2-week period, and work a minimum of 80 hours in any 120-day period. The ordinance applies to most employers, but does not apply to those subject to a bona fide collective bargaining agreement.

Laws Related to Sick Employees

Although most jurisdictions do not require employers to offer sick leave to employees, other laws may apply in a situation where an employee seeks leave. For example, if an employee requests sick leave for a serious health condition, the Family and Medical Leave Act (FMLA) may require leave, even if the employee may not be able to take the company’s designated sick leave. An employee may also have claims for disability discrimination if the employer offers leave differently based on whether an employee has a qualifying disability.

Court Finds Sexual Orientation Discrimination Prohibited

In August, I blogged how most federal courts have found employment discrimination on the basis of sexual orientation (LGBT) is not “discrimination based on sex” as contemplated by Title VII of the Civil Rights Act of 1964. However, the tide may slowly be turning.

Tide Turning

In my previous blog entry, I noted a three-judge panel of the Seventh Circuit Court of Appeals recently affirmed that Title VII does not prohibit sexual orientation discrimination, despite the Equal Employment Opportunity Commission (EEOC) concluding it does. The Court relied on Seventh Circuit precedent dating back to 1984 holding Title VII does not prohibit sexual orientation discrimination. Plaintiff Hively moved to have the decision reconsidered by the entire Seventh Circuit Court of Appeals (rather than just a three-judge panel). Last month, the Seventh Circuit granted the Plaintiff’s petition, and vacated the three-judge panel’s decision until the Court decides the case en banc.

In Hively, the Seventh Circuit partly found that it will leave expanding Title VII’s protections to district courts, “which are the front line experimenters in the laboratories of difficult legal questions…” In fact, a district court in Pennsylvania recently confronted this exact difficult legal question, and found “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation.” It will be interesting to see how the en banc Seventh Circuit treats the District Court’s groundbreaking determination, which is consistent with the EEOC’s position on the issue.

Election Day Employment Rights

Most people know they have the right to vote tomorrow, November 8, 2016, for the next president of the United States (among other candidates/issues). However, not as many people know they might be entitled to miss work in order to cast their ballot. Although there are no federal laws requiring employers to provide employees time-off to vote, many states have such laws.

Voting Poll

In Illinois, the State’s Election Code provides employees certain protections when it comes to voting. 10 ILCS 5/17-15. The Act applies when an individual begins their shift less than two hours after the opening of polls, and ends less than two hours before the closing of polls. In these situations, the company must permit a two-hour absence to allow the employee to vote. It is illegal for a person or corporation to deny this type of leave or subject the employee to any adverse consequences for making the request.

In order to take advantage of the law, Illinois employees need to act by the end of the day! In order be protected by the law, the employee must submit the leave application prior to the day of the election. Now Illinois employees have one less excuse to exercise their civic duty and vote on Tuesday!

McDonald’s Settles Disability Discrimination Lawsuit

As a McDonald’s franchise recently learned, companies cannot discriminate against individuals with disabilities in the application process, hiring, firing, advancement, compensation, and other terms of employment. Moreover, employers are required to offer reasonable accommodations to individuals with disabilities when doing so would not result in an “undue hardship.” The Americans with Disabilities Act and the Illinois Human Rights Act both provide these protections to individuals with disabilities.

Cheese burger

EEOC v. McDonald’s Corporation, et al.

Plaintiff, a man who is deaf, applied for a vacant position at the McDonald’s located in Belton, Missouri. The gentleman had experience working at a McDonald’s in Louisiana as a cook and clean-up team member. The restaurant initially scheduled Plaintiff for an interview. When company’s hiring personnel learned the applicant was deaf and required an interpreter for the interview, McDonald’s mysteriously lost all interest in hiring the applicant. However, the franchise continued to interview other employees, and eventually hired someone else for the position.

Not interviewing an applicant because he is deaf is a textbook example of disability discrimination and failure to reasonable accommodate. When McDonald’s learned the individual was deaf, it had a legal duty to take affirmative steps to accommodate the applicant’s hearing difficulties. It cannot simply throw the application in the trash and move on to the next applicant. The EEOC filed a lawsuit against the company in December 2015, claiming disability discrimination. This month, the parties entered into a consent decree, where McDonald’s agreed to pay the applicant $56,500 in monetary damages, among other forms of relief.

Keep in mind, there is a question whether the company obtaining an interpreter and employing a deaf employee would impose an undue hardship on the company. In making this determining, you take into account the employer’s size, financial resources, and the structure of the organization. Thus, if the two-employee mom and pop burger joint does not hire a deaf employee, it may have an argument that doing so would be an undue hardship due to all of the tasks that require fully-functional hearing. However, a company the size of McDonald’s, which has an abundant amount of employees in each store performing different tasks, would have no such argument.

If you think that you have been discriminated against based on a disability, contact an employment attorney as soon as possible.

 

Employers Cannot Always Check Your Credit

Illinois, like many other states, has a law that generally prevents companies from checking employees’ credit (be it credit report, history…) as a condition of employment. The Employee Credit Privacy Act, 820 ILCS 70/1 generally prohibits employers from refusing to hire, discharge, or otherwise discriminate against an employee because of the individual’s credit history or report. 820 ILCS 70/10(a)(1). In fact, employers cannot even inquire about an applicant’s or employee’s credit history in most circumstances.

There are exceptions to the rule.  An employer is allowed to learn an employee has a “satisfactory credit history” only for an “established bona fide occupational requirement of a particular position.” 820 ILCS 70/10(b). For example, if the duties of the job position include unsupervised access to cash or marketable assets at $2,500 or more, the company is allowed to confirm the employee’s credit is “satisfactory.” 820 ILCS 70/10(b)(2).  Another exception is when the employee’s job position has “access to personal or confidential information…” 820 ILCS 70/10(b)(5). An individual harmed by a violation in the act is permitted to bring a civil action to obtain damages, injunctive relief, and costs and attorney fees in bringing the action.

Ohle v. the Neiman Marcus Group

In this case, Neiman Marcus located in DuPage County declined to hire an employee because her credit was not satisfactory. Neiman Marcus claimed the employee had access to customers’ personal and confidential information, namely taking credit card applications and dropping the applications in a secure location.  Therefore, the company argued, it was allowed to inquire into her credit history.

Credit Card Application

However, the Court found the employee did not “access” to the confidential credit card information by merely taking a credit card application and dropping it in a secure box. If this were the case, most retail sales clerks in the entire state would be exempt from the statute designed to protect these very employees. Therefore, as the employee was not covered by any of the Act’s exemptions, Neiman Marcus violated the Employee Credit Privacy Act by obtaining her credit report.

If you believe an employer has improperly requested your credit information, terminated you for credit information, or discriminated against you for any reason, contact an employment attorney as soon as possible.

Illinois Enacts New Non-Compete Law

Businesses can have very legitimate reasons for implementing covenants not to compete (non-competes) with their employees. In Illinois, there are primarily two ways companies can justify subjecting employees to non-competes: (1) protecting confidential trade information; and (2) protecting customer relationships. In evaluating whether a non-compete is valid, a court will determine whether the provision: (1) is no greater than is required for the protection of a legitimate business interest of the employer-promisee; (2) does not impose undue hardship on the employee-promisor; and (3) is not injurious to the public. See Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 393, 396 (Ill. 2011).

Jimmy John’s Non-Compete Agreements

There are certainly “close cases” when it comes to the enforceability of non-competes. Whether a restriction should last for one or two years, restrict competition within 50 or 100 miles, or limit the applicability of the non-compete to a specific type of business activity are all likely relevant in whether a non-compete will have any force. However, the non-compete Jimmy John’s required its employees to sign was certainly not a close case. The sandwich company required all employees to sign a non-compete (the entire agreement can be found here), prohibiting the employee from working for any business which derives more than 10% of its revenue from sandwiches, and located within 3 miles of any Jimmy John’s restaurant for a period of two years. The agreement does not even attempt to justify why a non-compete is necessary, as most do.

Sandwich

Thus, if enforceable, the vastly overbroad provision would likely prevent a former Jimmy John’s employee from working at other sandwich-making restaurants such as Subway and Mr. Goodcents, but it would also prohibit the employee from working at McDonald’s, Arby’s, Burger King, and many (if not most) other fast-food restaurants.  Not only that, but as many fast food restaurants are within three miles of a Jimmy John’s, it would prevent the employee from working at any of the restaurants nation-wide!

It is mind boggling why someone thought this non-compete was necessary. Jimmy John’s employees do not have any secret information when making your sub. In fact, a customer can watch the employee make the entire sandwich. Jimmy John’s employees also do not have protectable customer relationships.  Even if the company had protectable interests, a court would likely find the non-compete was not limited to those interests. Instead of restricting the non-compete to sub sandwich restaurants near the particular Jimmy John’s, it restricted employment to basically all restaurants in the country.

Fortunately, the non-competes caught the attention of the Attorney Generals in Illinois and New York, and both states filed suit against the company for unfair conduct in violation of the States’ Consumer Fraud and Deceptive Business Practices Acts. The company soon caved, and agreed to not enforce any previous non-competes, and not require new employees to sign the provisions.

Illinois Freedom to Work Act

To prevent future oppressive conduct by companies, Illinois recently enacted the Illinois Freedom to Work Act. The Act prohibits employers from entering into non-competes with employees who earn $13 or less per hour. If the employer chooses to enter into the non-compete with such “low-wage employee,” the Act deems the covenant illegal and void. The Act becomes effective on January 1, 2017, and only applies to agreements entered after that date.

The moral of the story is that if you are contemplating signing a non-compete, or are not sure how an already-signed non-compete will affect you, consult an attorney immediately. Do not assume that all non-competes are enforceable in DuPage County or elsewhere in Illinois, because as Jimmy John’s showed, they often are not.