“Fact of an Arrest” to Terminate an Employee

When companies decide whether to hire or fire an employee, they are sometimes tempted to use arrest and conviction records to assist their determination.  However, some federal and state laws limit what arrest records can be used in making employment decisions.

Sirens

The Illinois Human Rights Act (IHRA) generally prohibits employers “to inquire into or to use the fact of an arrest or criminal history record information ordered expunged, sealed or impounded …” to take any adverse employment action against the employee. 775 ILCS 5/2-103(A).  Although companies are not allowed to consider an employee or applicant’s fact of arrest in making an employment decision, employers are still permitted to obtain and use “other information which indicates that a person actually engaged in the conduct for which he or she was arrested.” 775 ILCS 5/2-103(B).

If an employer is found to have violated the IHRA, the employee is entitled to damages, including actual damages (to compensate the injury or loss actually suffered by the Plaintiff), reinstatement, costs in bringing the action, and reasonable attorney fees.

Murillo v. City of Chicago

The City of Chicago recently learned the hard way that it is impermissible to use a fact of an arrest as grounds to fire an employee.  In Murillo v. City of Chicago, the Plaintiff was arrested in the late 1990s for allegedly possessing cocaine.  However, the trial judge in the case promptly dismissed the charges against Plaintiff for lack of probable cause.  Nearly ten years later, the Plaintiff obtained a job as a janitor for the City of Chicago.  The City eventually obtained the arrest report from the 90s, revoked the Plaintiff’s security clearance, and terminated his employment.  Plaintiff sued because the City used the fact of his arrest as the sole basis of his termination.

The trial court agreed with the Plaintiff, finding the City violated the IHRA by using the fact of his arrest in firing him.  The jury found Plaintiff was entitled to damages for lost wages, pension benefits, and emotion distress in the sum of $87,227.75.  The trial court also granted Plaintiff’s motion for attorneys’ fees, but only granted $183.796.83 of the requested $300.497.50.

The Illinois Court of Appeals upheld the trial court’s decision that the City of Chicago violated the IHRA by using Plaintiff’s fact of arrest in terminating his employment.  However, the Court remanded the case back to the trial court to provide a reason why the attorneys’ fee award was slashed in half for no apparent reason.

Lessons from Murillo

This case shows employers should take the IHRA’s prohibition of using the fact of an arrest in employment decisions seriously.  Here, the City of Chicago is looking at damages of close to half-a-million dollars for not following the law.  Moreover, it remains unclear why the City of Chicago deemed an arrest ten years ago relevant as to whether the gentlemen could successfully perform his job duties today.  Unfortunately, while most would agree the arrest itself is not helpful in evaluating an employee, the IHRA protects employees from the companies that do. 

Discrimination Based on Sexual Orientation

Imagine this situation. You are a model employee at your company. You arrive to work early, stay late, and work hard. One day, your boss pulls you into his office with some unfortunate news. Your boss admits that you are a great worker. However, he says that he recently learned that you are gay, and for that reason alone, you’re fired. Did your boss break the law by firing you based on your sexual orientation? Although it might surprise you, under federal law, most courts have found this type of termination is perfectly legal.

Federal Law – Title VII

Title VII of the Civil Rights Act of 1964 is a federal law which prohibits many employers from discriminating against employees. Title VII makes it an “unlawful employment practice for an employer to fail or refuse to Rainbow Flaghire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Thus, the question is whether discrimination based on sexual orientation is considered discrimination because of an individual’s sex. The Equal Employment Opportunity Commission takes the position that Title VII prohibits sexual orientation discrimination. In fact, earlier this year the EEOC filed two lawsuits on behalf of employees claiming they were discriminate against based on their sexual orientation. One of these lawsuits has already settled.

Despite the EEOC’s position on sexual orientation discrimination under Title VII, most courts around the Country have found Title VII does not prohibit sexual orientation discrimination. Last week, the Seventh Circuit Court of Appeals, which covers Illinois, also found Title VII does not cover sexual orientation discrimination. The Court relied heavily on Seventh Circuit precedent finding sexual orientation is not a Title VII protected characteristic. See Hamner v. St. Vincent Hosp. Health Care Ctr.., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000). In essence, the Court held Title VII prohibits discrimination based on a person’s gender, not a person’s sexual orientation. See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014). The Supreme Court has not ruled on the critical rift between the EEOC and most Circuit Courts.

Congress has attempted to change Title VII to include sexual orientation as a protected characteristic. Since 1994, every Congress except the 109th has proposed the Employment Non-Discrimination Act. The Act would amend Title VII to prohibit sexual orientation and gender identity discrimination. Until Congress passes any legislation or the Supreme Court rules on the issue, we are likely stuck with the current state-of-affairs regarding sexual orientation discrimination at the federal level.

State and Local Laws

Even though most courts have found federal law does not prohibit sexual orientation discrimination, some states have enacted legislation prohibiting the discrimination. For example, the Illinois Human Rights Act prohibits discrimination “against any individual because of his or her … sexual orientation … ” 775 ILCS 5/1-102(A). Some municipalities also prohibit discrimination within the city or county.  For example, Cook County prohibits sexual orientation discrimination in employment decisions. To see which states prohibit which types of discrimination, see this website created by the Human Rights Campaign. Under the “select and issue” tab, select “statewide employment laws & policies.”

Also keep in mind that even some employers are not subject to any anti-discrimination laws as to sexual orientation, they are free to implement their own policies that prohibit this type of discrimination. Although not legally required (at least no yet), it would still be the right thing to do.

Developments in New Overtime Rule

As I previously discussed, the Department of Labor created a new overtime rule that will increase the salary threshold for so-called “white-collar” employees to be exempt from overtime.  Currently white-collar employees are exempt from overtime if they are paid a salary of $23,660 and meet other job duties qualifications.  However, the Department of Labor is increasing that threshold to $47,476.  This means white-collar employees earning less than this amount will be entitled to time-and-a-half for all overtime worked.  The new rule is set to take effect on December 1, 2016.

114th_United_States_Congress

Opponents of the new rule, largely Republicans, have already fought hard to prevent the rule from becoming implemented.  Senate Republicans initially contemplated blocking the rule by including a rider on this year’s Appropriations bill.  Such a rider would cut off funding necessary to implement the rule.  However, Republicans did not end up including the rider in the bill, knowing such a rider would likely result in a veto from President Obama.

Senators have also introduced a resolution (S.J. Res. 34) to block the overtime rule.  The resolution was only backed by Republicans.  The President is required to sign any resolution preventing the rule (per INS v. Chahda, 462 U.S. 919 (1983)), meaning Congress would need a two-thirds vote to override any veto.  As President Obama proposed and announced the overtime rule, a veto would be inevitable, and Republicans would be unable to override it.

However, legislators on both sides of the aisle have proposed changes to the new Overtime Rule.  This month, Representative Kurt Schrader (D-OR) introduced H.R. 5813.  The law would phase in the Department’s overtime rule over a period of three years.  It would increase the threshold as follows:

  • December 1, 2016: $35,984
  • December 1, 2017: $39,814
  • December 1, 2018: $43,645
  • December 1, 2019: $47,476

GovTrack currently gives the bill a 1% chance of becoming a law.  However, we will closely follow this and other related proposed legislation as it will determine whether a large amount of workers are entitled to overtime pay.

Termination for Off-Duty Facebook Comments

In the past months, there have been a massive amount of protests across the Country.  These protests often involve some combination of the Black Lives Matter movement, officer-involved shootings, Donald Trump, and Hillary Clinton.  Obviously these are all hot-button topics that draw an immense amount of passion and enthusiasm from everyone involved.

So what happens when an employee says something while not at work about the protests that might be considered discriminatory or racist?  For example, in Richmond County, South Carolina, seven first responders have lost their jobs over social media comments about a Black Lives Matter protest which occurred on July 10, 2016.  One senior paramedic who worked for the company, Tommy Boland, commented on facebook that he will “donate to whoever runs over protesters in the roaddway (sic).”  He was terminated a few days later.

In Philadelphia just last week, an employee was fired after posting a rant about a Black Lives Matter protest on her facebook page.  Instead of following this opera signer’s more subtle approach to support his “All Lives Matter” cause, Diana posted the following on her facebook page:

           Facebook page of termination

She was soon fired as well.  But doesn’t the first amendment guarantee us the freedom of speech?!  This is America after all.

Wrongful Termination

Well… kind of.  The general rule in Illinois and most other states is that employers can terminate employees for any reason or no reason at all.  This is called at-will employment – the employee is working at the will of the employer.  If your boss does not like you playing Pokemon Go in your free time, he or she is likely free to legally terminate you for that reason.

However, like any other legal rule, there are exceptions that may prevent the employer from terminating an employee for comments made while not at work.  Here are some of the most common exceptions:

  1. Freedom of Speech

The First Amendment to the Constitution protects our freedom of speech.  However, the Amendment only prohibits the government from abridging freedom of speech, not private entities.  In essence, while the government cannot arrest you or otherwise punish you for making those unfortunate racist comments on facebook, your employer is usually free to terminate you based upon the comments made at home.

Public employers, on the other hand, do not have as much freedom as their private counterparts.  The Supreme Court has found that government officials are prohibited from retaliating against an employee because of the employee’s engagement in constitutionally protected political activity. See Elrod v. Burns, 427 U.S. 347 (1976).  In these cases, the employee must establish that he or she speaking as a citizen, rather than speaking on matters pursuant to employment duties. See Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007).

  1. Employment Contract

One way to avoid the often unfair at-will employment doctrine is for the employer and employee to enter into an employment agreement.  In the contract, the parties can agree that the employee can only be terminated for-cause, which can only be based on the employee’s misconduct while at work.  Government employees, union employees, and executives are generally more likely to be subject to an employment contract.  However, most individuals are not subject to such agreements, and are subject to the employment at-will doctrine.

  1. Concerted Activity under the National Labor Relations Act

Another potential reason an employer cannot legally fire an employee for comments made while off-duty is the worker’s comments are protected under the National Labor Relations Act (NLRA).  The NLRA prohibits most employers from retaliating against employees (whether in a union or not) when the employee engages in “concerted activity.”  This is defined as two or more employees taking action for their aid or protection regarding the terms of their employment.  Thus, an employee covered by the NLRA is generally free to complain about working conditions on facebook if he is doing so to potentially discuss the conditions with other employees.

Conclusion

Thus, even though this is the land of the free, employers are generally free to terminate employees for off-duty comments on facebook and elsewhere.  I have provided some exceptions to the general rule that are likely to apply to off-duty comments.  Obviously there are other exceptions to the general at-will employment doctrine (such as the prohibition to discriminate on the basis of race), but I only the listed those most likely to apply in the situation.

Illinois on the Verge of Getting Domestic Workers Bill of Rights

On June 26, 2016, the Illinois General Assembly approved the Illinois Domestic Workers Bill of Rights.  In short, the law would provide greater workplace protections for domestic workers, such as caregivers and house cleaners, that were previously unavailable.  The bill is sitting on Governor Bruce Rauner’s desk for his signature.

CleanerWhat’s the Problem?

Domestic workers are not protected by many federal and state employment laws.  Many laws protecting workers only apply to companies with a minimum number of employees.  For example, Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees, the Family and Medical Leave Act only to employers with 50 or more employees, and the Age Discrimination in Employment Act applies to employers with 20 or more employees.  As most companies employing domestic workers only have a few employees, these laws do not effectively protect them.

Moreover, some laws specifically exclude domestic workers from the employment protections.  For example, the National Labor Relations Act, which allows employees to form a union and negotiate for better pay, does not protect individuals “in the domestic service of any family or person at home.” 29 U.S.C. § 152(3).  Similarly, the Occupational Safety and Health Act, which sets minimum standards of health and safety at the workplace, does not cover domestic workers. 29 C.F.R. § 1975.6.

Domestic Workers Bill of Rights

The proposed legislation adds several employment protections for domestic workers.  The bill generally applies to people performing “domestic work,” which includes housekeeping, nanny services, caregiving, and companion services, among other duties.   The bill provides the following protections for domestic employees:

  • The bill allows domestic workers to be protected by Illinois’ Human Rights Act, which prohibits discrimination in Illinois with respect to employment on the basis of race, color religion, sex, national origin, ancestry, military status, age, marital status, sexual orientation, and disability.
  • The bill adds domestic workers as individual covered by the Illinois Minimum Wage Law, which mandates Illinois employers to pay their employers the minimum wage (currently $8.25) and overtime for all hours worked over forty in a given week.
  • Domestic workers must be allowed to have a 24-hour consecutive rest break in every calendar week. The domestic worker can voluntarily agree to work on such day of rest, but the employer is required to pay all hours worked on the rest day the overtime rate, even if the employee has not worked at least forty hours in the given week.

The Governor has 60 days to take action on the legislation.  If he approves the bill, it will become effective on January 1, 2017.  Domestic workers are often overworked and underpaid, and it is good to see these long-overdue employment protections close to becoming Illinois law.

New Federal Overtime Rule

We are proud to announce the opening of Osborne Employment Law!  The firm’s founding attorney, Quinton Osborne, represents employees in all types of employment-related disputes, including unpaid wages, wrongful termination, discrimination, retaliation, non-compete disputes, sexual harassment, unemployment, and healthcare license defense.  Click here to learn more about the firm.

This portion of the website will be dedicated to providing updates about the firm, discussing recent employment-law cases, and reviewing relevant laws and regulations.  If you have any questions or requests for blog posts, contact Osborne Employment Law.

Recent Updates in Federal Overtime Law

Earlier this year, the United States Department of Labor announced likely the most important employment-related administrative rule for 2016.  The Department of Labor is the United States agency responsible for enforcing and setting standards for many work-related areas, including wage and hour standards.  Keep in mind, Congress is notoriously bad at passing laws.  Thus, often the major employment-related “legislation” on the federal level are actually regulations created by federal agencies.  In the employment world, this usually involves the Department of Labor or the Equal Employment Opportunity Commission, both of which have the authority to create regulations related to their defined areas.

Obama Signing Overtime Regulation

On May 18, 2016, President Obama announced publication of the Department of Labor’s new long-awaited final overtime rule.  In order to be legally classified as exempt from overtime as an executive, administrative, professional, outside salesman, or computer employee, one of the three tests is that you must be paid a minimum salary.  Currently companies only need to pay employees a salary of $23,660 to meet the threshold.  However, effective December 1, 2016, the salary threshold will rise to $47, 476, more than double its current amount.

Who Does the New Rule Effect?

The new overtime rule will impact executive, administrative, professional, outside salesman, and computer employees who work over forty hours in a week and are currently paid less than $47,476.  These employees will now be entitled to an overtime rate of time-and-a-half their regular rate of pay for all hours worked over forty.

Employers have several different options to cope with the new overtime rule.  The most obvious is to keep the employee’s salary the same, but start paying overtime for all hours worked over forty.  If the employer does not want to track all of the employee’s hours, it can simply raise the employee’s salary at or above the $47,476 salary threshold.  The employer can also choose simply to limit the workers’ hours to forty per week.