In This Issue:
“Adverse Employment Action” Unnecessary for Retaliation Claim
An employee of the Illinois Department of Revenue sued her employer alleging that changing her work schedule was retaliation in violation of Title VII of the 1964 Civil Rights Act. Between 1984 and 2000, the employee had permission to work 7 a.m. to 3 p.m. so that she could be home to care for her developmentally disabled son. After her manager reassigned some of her duties to other employees, the employee sued for discrimination. The employee’s manager then demanded that she work a regular shift from 9 a.m. to 5 p.m. The employee alleged that the elimination of her flex-time schedule was retaliation against her for filing the discrimination claim. The district court dismissed her Title VII retaliation claim, explaining that the employee did not suffer an “adverse employment action.” However, the Seventh Circuit, after recognizing that there is a split of authority among the Circuits, explained that evidence of an “adverse employment action” was unnecessary for a retaliation claim. The Seventh Circuit further explained that the employee must demonstrate that the employer’s challenged action would have been material to a reasonable employee. Although the flex time elimination may have been harmless to another employee, it might be considered materially adverse to this employee because she needed the flexible schedule to care for her son. Accordingly, the Seventh Circuit remanded the case for the district court to determine if the change to the employee’s schedule was sufficiently materially adverse to this employee to support her retaliation claim.
Contact for more information: Tom H. Luetkemeyer
Favorable Review Creates Issue of Fact for Retaliation Claim
An employee was fired three days after receiving a good performance review, shortly after her supervisor learned that the employee was thinking about pursuing a sex discrimination claim. The employee brought a claim under Title VII of the 1964 Civil Rights Act alleging that her termination was in retaliation for her potential sex discrimination suit. The district court had granted summary judgment for the employer, stating that there were no triable issues of fact. The Seventh Circuit reversed, explaining that the employee presented enough evidence of a causal link between her expressing concerns about sex discrimination and her termination. The Court explained that the employee’s most recent favorable evaluation coupled with the rapid reversal of her employer’s evaluation of the employee’s work performance was sufficient to create an inference that her complaints of discrimination were a substantial and motivating factor in the employee’s termination. This case illustrates that employers need to be especially sensitive of evaluations, particularly for employees whom they intend to terminate.
Contact for more information: Thomas Y. Mandler
Alleged Sexual Assaults Not Enough to Show Bias/Harassment
A male employee complained to his manager about a male co-worker who allegedly physically forced him to simulate sex acts, pulled hair out of his chest and bit him on the neck. After the employee’s manager allegedly did nothing to address the co-worker’s conduct, the employee again complained, and was fired thereafter. The manager alleged that the employee was fired because he had quarreled with two other employees who had had affairs with the employee’s wife. The employee filed a claim alleging violations of Title VII of the 1964 Civil Rights Act, alleging sex discrimination, sexual harassment and wrongful discharge. The case was dismissed by the district court, and the Seventh Circuit upheld the dismissal. The Court explained that the facts did not show that the manager reacted differently to reports of sexual harassment by women than by men, or that the company was aware of the employee’s initial complaint to the manager when he was fired. The Court noted the difference between sexual discrimination versus sexual horseplay, noting that only the former is protected against by Title VII. Since the episodes in question were infrequent, and there was no evidence that the working conditions were worse for men than women, the case was properly dismissed. Despite this opinion, employers need to remain diligent in their investigation and conduct with respect to working conditions relevant to sexual discrimination and harassing conduct.
Contact for more information: Justin M. Penn
EEOC Revises Guidance on Timely Filing Discrimination Charges
The Equal Employment Opportunity Commission (“EEOC”) has recently issued a revision to its Compliance Manual section on “Threshold Issues” that address time limitations for filing employment discrimination charges with the agency. Threshold issues are those requirements that an individual must satisfy in order to have a legal claim. After a charge is filed, an EEOC investigator must determine whether the threshold requirements are satisfied before considering the substance of the discrimination charge. The revisions come in light of the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 636 U.S. 101 (2002), and address the timeliness distinction between a charge for a discrete act versus a charge for a hostile work environment. The changes indicate that while a discrete act is only independently actionable within the filing period, all incidents that make up the same hostile work environment charge are actionable as long as at least one incident occurred within the filing period. It is important to remember that, in addition to enforcing Title VII of the 1964 Civil Rights Act (which prohibits discrimination on the basis of race, color, religion, sex or national origin), the EEOC also enforces the Age Discrimination in Employment Act (protecting employees 40 years of age and older), the Equal Pay Act, Title I of the American with Disabilities Act (protecting qualified individuals with a disability), and sections of the Civil Rights Act of 1991. As such, these revisions will have far reaching application.
Contact for more information: Michael J. Leech
FACTA Regulations Impose New Disposal Requirements
The Fair and Accurate Credit Transaction Act of 2003 (“FACTA”) imposes a duty upon employers to use extra caution when disposing of certain credit and derivative information concerning employees. The Federal Trade Commission (“FTC”) regulations regarding FACTA recently became effective, and impose strict disclosure and disposal requirements on employers who perform credit and/or background checks. Under the regulations, an employer who possesses consumer information for a business purpose must take reasonable measures in disposing of that information in order to protect against unauthorized access or use of the information. Consumer information is defined broadly and includes “any record about an individual whether in paper, electronic or other form that is a consumer report or is derived from a consumer report.” The FTC has suggested some methods to employ in order to meet this standard, including: 1.) burning, pulverizing or shredding papers containing consumer information; 2.) destroying or erasing all electronic media containing consumer information; and 3.) hiring and monitoring a third party vendor to handle the disposal requirements for both paper and electronic media. Employers should remember that these requirements are in addition to the requirements (including notice requirements) imposed by the Fair Credit Reporting Act.
Contact for more information: Andrew B. Cripe
Nonimmigrant Visa Numbers Exhausted for Fiscal Year 2006
The United States Citizenship and Immigration Services (“USCIS”) recently released figures that show it has issued all of the H-1B nonimmigrant visas that it will allow for the 2006 fiscal year. The H-1B nonimmigrant visa category, established by the Immigration Act of 1990, admits foreign workers into the United States for an initial period of three years. The H-1B nonimmigrant visas are usually used by employers to bring in highly skilled workers such as architects, engineers, computer programmers and college professors. The recently enacted H-1B Visa Reform Act of 2004 made 20,000 new H-1B visas available for foreign workers with a master’s or higher level degree from a U.S. academic institution. However, the recently released numbers indicate that the entire quota for the 2006 fiscal year (from October 1 through September 30) has been exhausted. Employers should review their employment needs for the future in a timely fashion, paying special attention to any needs that will be filled by foreign citizens.
Contact for more information: Penelope M. Lechtenberg
New Illinois Law Requires Family Military Leave
The Family Military Leave Act, effective immediately, creates a new and unique form of unpaid leave in Illinois. Under the Act, employers with between 15 and 50 employees must provide up to 15 days of unpaid leave to employees who are either the spouses or parents of soldiers called into active military duty. Employers with more than 50 employees are obligated to provide affected employees with up to 30 days of unpaid leave.
Contact for more information: Clay M. Ullrick
New Illinois Law Affects Day/Temporary Laborers
A new Illinois law effective January 1, 2006, is intended to provide greater rights for day and temporary laborers in Illinois by imposing new requirements on agencies that employ day or temporary laborers. The changes to the agency duties and requirements affect: 1.) employment and wage notices; 2.) paycheck deductions; 3.) pay calculations if laborers are overstaffed at a site; and 4.) transportation to/from job sites. In addition, the new law requires employers that contract with day or temporary labor agencies to verify that the agency is registered with the Illinois Department of Labor or face potential monetary penalties. Day or temporary labor agencies, as well as those employers who contract with them need to be informed of the duties and obligations that the new law imposes on them.
Contact for more information: James R. Pirages
Changes to Illinois Laws Affecting Nursing
The Illinois Hospital Licensing Act has been amended, effective July 28, 2005, prohibiting mandated overtime for certain hourly nurses, except in the situation of an “unforeseen emergent circumstance” when overtime is required as a last resort. “Mandated overtime” is work that is required by the hospital in excess of an agreed upon predetermined work shift. Additionally, there is a provision that when a nurse is properly mandated to work such overtime and, as a result, works up to 12 consecutive hours, the nurse must be allowed at least eight consecutive hours of off-duty time immediately following the completion of that shift. Time worked by nurses required to be available as a condition of employment in specialized units (such as surgical nursing services) is not considered in calculating the amount of time worked when applying this new prohibition. Illinois hospitals need to be aware of this amendment and how it will be applied.
Contact for more information: Paul J. Cherner
Retaliation Protections are Broadened in California
A regional sales manager was told by her supervisor to replace a female sales associate because she “was not good looking enough,” and to “get me somebody hot.” After the sales manager refused to comply, her supervisor started criticizing her managerial style and scrutinizing her expense reports. After she was terminated, she sued for gender discrimination and retaliation under California law. The California Supreme Court agreed that retaliation occurred because the plaintiff’s actions were sufficient to put the company on notice of her opposition to discriminatory behavior. Her questioning of the decision and the refusal to comply coupled with her supervisor’s actions were sufficient to show retaliation. Navigating the minefield of retaliation is now more difficult. A series of small acts affecting future job opportunities or an employee’s ability to function at her job can satisfy the adverse action standard. In addition, a subordinate need not directly confront her supervisor with charges of discrimination. Even subtle reactions may now serve as notice of retaliatory conduct.
Contact for more information: Clint D. Robison
Officers Not Personally Liable for Overtime in California
Employees of an automobile painting business brought a class action lawsuit against their employer and its corporate officers for unpaid overtime. The plaintiffs were shop managers who alleged they were forced to work overtime hours without overtime compensation. The plaintiffs named their employer and various corporate officers of the business as individual defendants. The plaintiffs contended that they were misclassified as exempt employees and brought this action on behalf of all shop managers. The California Supreme Court held that, under California corporate law, corporate officers cannot be held personally liable for the corporation’s failure to pay its employees’ wages, including overtime claims. Even though the individuals were not held liable, this decision illustrates the importance of properly classifying employees.
Contact for more information: Kristine E. Kwong
Register Today for a Half-Day Seminar - Effectively Dealing with Current Labor & Employment Issues
Presented in Two Locations on Two Separate Dates
These complimentary seminars bring together attorneys who specialize in different areas of labor and employment law, employee benefits and workers’ compensation. Attendees will get an overview of recent legislation and current trends in labor and employment law and the effects on employers
Chicago
Thursday, September 22, 2005
9:00 a.m. - 1:30 p.m.
Registration begins at 8:30 a.m.
The Standard Club
320 South Plymouth Court
Chicago, Illinois
Click here to register for the Chicago seminar.
Lisle
Wednesday, November 2, 2005
9:00 a.m. - 1:30 p.m.
Registration begins at 8:30 a.m.
Wyndham Lisle
3000 Warrenville Road
Lisle, Illinois
Click here to register for the Lisle seminar.
Who should attend?
Human Resource Professionals
In-House Legal Counsel
Employers
Seminar Schedule
8:30 a.m. - 9:00 a.m.
Continental Breakfast and Registration
9:00 a.m. - 12:00 p.m.
Seminar
An Update on Recent Important Court Decisions
Speaker: Tom Luetkemeyer
Recent Supreme Court and Seventh Circuit decisions that impact employers will be discussed.
The Latest Regulatory and Legislative Changes Affecting Employee Benefits
Speaker: Lisa Burman
Learn about the new Roth 401(k)s, the grace period exception to the cafeteria plan "use it or lose it" rule, automatic rollovers to IRAs of involuntary cash-outs, and other changes.
Unions: Dead or Alive?
Speaker: Thomas Mandler
Analysis of the recent decision by several unions to defect from the AFL-CIO, and the possible effects on employers.
Blagojevich Era Labor and Employment Legislation
Speaker: James Pirages
A review of ground breaking legislation signed during Governor Blagojevich’s term that is designed to bolster the rights of employees.
Current Leave of Absence Issues
Speaker: Paul Cherner
Learn about recent developments regarding leave of absence issues arising under the FMLA, ADA and state law and their effect on employers.
How to Prevent Workers’ Compensation Fraud
Speaker: Cheryl Wilke
What all employers need to know about preventing workers' compensation fraud and maintaining all necessary evidence to prosecute employee's for filing fraudulent claims. A detailed analysis of the four key areas of fraud: false reports of accident; false statements of prior injuries; receipt of duplicative benefits and failure/refusal to return to work. Employers will be provided with necessary information to determine if fraud exists and how to use fraud as a defense to the payment of benefits.
Proper Documentation for Employment Actions
Speaker: Andrew Cripe
Find out what documentation is necessary to properly handle personnel issues in an effort to decrease the likelihood of an employment-related lawsuit.
Open Mike: Panel to Answer Labor & Employment Law Questions*
An open forum to pose questions to attorneys who specialize in labor and employment, employee benefits and workers’ compensation.
12:00 p.m. - 1:30 p.m.
Luncheon
*Additional Lisle Seminar Session in November!
The following topic will be presented in Lisle only. It replaces Chicago's “Open Mike” session.*
Homeland Security (Immigration) in the Workplace
Speaker: Penelope Lechtenberg
Learn about the common types of nonimmigrant visa classifications available for use by employers and the permanent residency process for long-term employment of foreign-born workers. Also learn about the I-9 procedure and recent immigration developments affecting the workplace.
Registration
To register online for this complimentary seminar and luncheon please click on Registion links provided above, or call Katherine McCormack at (312) 704-3329.
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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