Recently, the Illinois Appellate Court ruled that messages sent by Aldermen on their personal electronic devices during a council meeting are "public records" and are subject to disclosure if they pertain to public business. City of Champaign v. Lisa Madigan, 2013 IL App (4th) 120662.
The panel unanimous held that a municipality is required to disclose electronic communications between aldermen during a city council meeting if those texts, tweets, or emails were about city business, even if the communications were created on, sent by, or stored in private phones or computers.
Justice Pope explained that "To hold otherwise would allow members of a public body, convened as a public body, to subvert the Open Meetings Act and [Freedom of Information Act (FOIA)] requirements simply by communicating about city business during a city council meeting on a personal electronic device."
Antoinette Choate has been featured as one of the “Top Women Attorneys in Illinois,” as jointly presented by Thomson Reuters and Chicago Magazine in that publication’s October 2013 issue.
Honorees include female attorneys from the 2013 Illinois “Super Lawyers” and “SuperLawyers Rising Stars” lists, and encompass outstanding lawyers in more than 70 areas of practice.
Illinois Supreme Court Justice Rita Garman was recently sworn-in as our high court's Chief Justice by former Chief Justice Thomas Kilbride.
Chief Justice Garman began her judicial career over 40 years ago in 1974 in Vermilion County. She is the 119th chief justice on the court and the second woman to hold the post of Chief Justice.
The Seventh Circuit reversed summary judgment in a Fair Labor Standards Act (FLSA) matter. DeKeyser v. Thyssenkrupp Waupaca, Inc., No. 12-3306 (October 31, 2013).The employees alleged that the employer failed to pay them overtime for time spent at end of shift showering and changing out of uniforms and personal protective equipment used at worksite in violation of the FLSA.An employee’s activity constitutes compensable “work” under the FLSA if such activities are required by law, by the employer, or by the “nature of the work.
The District Court, in error, believed that such time was not compensable since OSHA did not mandate that the employees change their clothes and shower after work. The Seventh Circuit stated "we cannot, as the district court did, draw any negative inferences from the absence of an OSHA standard requiring Waupaca foundry workers to shower and change clothes on- site."
Furthermore, courts cannot ignore, as the district court did here, factual evidence and expert testimony offered by the parties to establish the compensability of an activity under the FLSA. Therefore, the "district court erred when it ignored the 'sharp dispute' in the evidence as to the health effects of chemical exposure at Waupaca’s foundries and the impact, if any, that showering and changing clothes would have on Waupaca workers and granted summary judgment in the face of such factual disputes."
Therefore, summary judgment was not appropriate because: (1) FLSA’s definition of compensable work included activities that were required to be performed due to “nature of work;” and (2) the record contained triable issue of fact as to health effects of exposure to chemicals at the foundry, as well as impact that showering and changing of clothes had on plaintiffs so as to potentially make such time necessary due to nature of their work.
The Seventh Circuit held that the District Court erred in granting defendant-employer's motion to dismiss employee Lavalais' race discrimination claim. Lavalais v. Village of Melrose Park, No. 13-1200 (October 24, 2013).The race discrimination claim alleged that the Village treated similarly-situated police officers more favorably "as to policies and re-assigment" because the Village placed Sergeant Lavalais on the midnight shift indefinitely because of his race, refusing to re-assign him to another shift.The Seventh Circuit rejected the Village's argued that the race discrimination claim was untimely because it was not measured from the initial placement on midnight shift, but from the request to transfer him to different shift. Furthermore, the Seventh Circuit rejected the Village's argument that the transfer denial claim was not within scope of original EEOC charge. Finally, the Seventh Circuit held that Lavalais' claim alleged a sufficient material adverse act where he asserted that his placement on the midnight shift was tantamount to stripping him of his authority as sergeant on force.
Yesterday, the Seventh Circuit reversed summary judgment on 1983 false arrest claim in Williams v. City of Chicago, No. 12-3249 (Oct. 24, 2013).
The Seventh Circuit explained: "We have often explained that district courts may not grant summary judgment on grounds not argued by the moving party, at least not without giving notice so that the non-moving party has a full opportunity to present relevant evidence and argument. E.g., Pactiv Corp. v. Rupert, 724 F.3d 999, 1001 (7th Cir. 2013); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence”). This general principle applies to matters of fact as well as to matters of law. Pactiv Corp., 724 F.3d at 1001, citing Fed. R. Civ. P. 56(f) (making explicit that a district court may “consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute” “after giving notice and a reasonable time to respond”). It is not appropriate to grant summary judgment based on facts the moving party did not rely on, at least without giving the losing party advance notice and an opportunity to be heard."See the full opinion here.
The Seventh Circuit reversed the District Court in Mullin v. Temco Machinery, Inc., No. 13-1338, in favor of the employee. (October 10, 2013).
The District Court had granted the employer Temco’s motion for summary judgment in the ADEA action. The employee Mullin claimed that Temco fired him from his fire-truck salesman job because of his age, 56 years old.
The Seventh Circuit explained that the record contained a triable issue regarding the actual reason for the employee's termination where the record showed: 1. Temco had recently terminated another 50-year-old salesman and replaced him with younger employee; 2. Temco's initial explanation that Mullin, who was top selling salesman, was too expensive to employ was contradicted by fact that the employer replaced Mullin with two younger, inexperienced employees at little cost savings 3. A factual dispute existed as to whether Mullin actually failed to show up to work, leaving several visitors to wander around the plant unsupervised. While his supervisor said that was the case, the visitors each gave depositions confirming that Mullin was with them at all times and gave them a good tour; and4. The record did not support Temco's claim that Mullin was underperforming in terms of sales at time he was fired.
The Seventh Circuit reversed the District Court in Perez v. Thornton's, Inc. on September 30, 2012. No. 12-3669. The District Court had granted the employer's motion for summary judgment in the Title VII action, which alleged that the employer fired Ms. Perez from her store manager position because of her gender and national origin.
The Seventh Circuit lead with pointing out that "All employees, not only perfect employees, are protected by Title VII."
The Seventh Circuit held that Ms. Perez could survive summary judgment both under the direct method and indirect method of proving her claim.
The Seventh Circuit noted that the record supported the employer's conclusion that Ms. Perez had committed a workplace infraction by selling large quantity of candy to herself at unauthorized discount price. However, the Seventh Circuit held a jury could conclude that the employer gave unwarranted preferential treatment to Ms. Perez's male, non-Hispanic supervisor, when it failed to fire him for committing similar infraction. (He made up a fake purchase on his personal credit card for beer in an effort to cover up fact that the store had been missing a quantity of beer.) The fact that the supervisor’s actions did not cause loss to defendant did not require different result since both infractions were sufficiently similar to require jury to resolve instant disparate treatment claim.
The Seventh Circuit further rejected the employer's argument that Ms. Perez could not contest the employer's claim that different supervisors made the decisions, so as to preclude Ms. Perez from establishing disparate treatment claim, even though Ms. Perez had admitted such in response to the employer's Rule 56.1 statement, because the Seventh Circuit found that the employer had undermined its own Rule 56.1 statement through presentation of contradictory assertions and evidence.
Ms. Perez's manager told her that “he [didn’t] want to work with [a] woman;” “this is the reason why I don’t like to work with women, always have something to do with the kids or they have a period;” and that he “did not like” Hispanics.
The First District Appellate Court of Illinois held that a non-compete agreement is not valid and enforceable if an employee is fired or resigns within two years. Fifield and Enterprise Finance Group, Inc. v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327.
In the case, employee Fifield signed employer Premier's employment agreement that contained both a noncompetition and a nonsolicitation provision that lasted two years unless the employee was terminated without cause within his first year of employment. The employee began working on November 1, 2009, and he resigned from his position on February 10, 2010.
The trial court held that the non-competition and non-solicitation provisions were unenforceable as a matter of law for lack of consideration. The Appellate Court affirmed.Premier first argued that the two year consideration rule recognized by Illinois courts did not apply because the Plaintiff signed the restrictive covenants before he was hired. The Court held that it did not matter whether the employee signed the restrictive covenants before or after he was hired since the non-competition and nonsolicitation provisions clearly governed the employee's post employment conduct.
Premier’s also argued that the offer of employment itself was sufficient consideration to support the restrictive covenants. The Appellate Court held that at-will employment can constitute an “illusory benefit” and that “continued employment for two years or more” was necessary to constitute adequate consideration to support a post-employment restrictive covenant.
Under the new healthcare act, employers that offer health insurance to their employees must send a notice to all of their employees - regardless of whether the employee takes the coverage or not. Here is a sample letter of what you will likely be receiving from your employer: http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf.The new healthcare insurance marketplace launches today, October 1. You can learn more about it here: https://www.healthcare.gov.