On December 11, 2014, the National Labor Relations Board (NLRB) issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes, as it recognized email as one of the primary ways workers communicate, effectively becoming the new "water cooler."
The decision only applies to employees who have already been given access to the employer’s email system and only during nonworking time. Furthermore, a company can ban employees’ use of email for nonwork related business if they can show that that the ban is necessary to maintain production or discipline.
The decision overturns the 2007 Register Guard decision, which allowed employers to prohibit use of company email for non-work related purposes.
However, the decision did not clarify whether employees have the right to use employer email systems to communicate directly with unions.
Read the order here.
The United States Supreme Court held that the time employees spend waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act ("FLSA"). Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (December 9, 2014).
Plaintiffs were employed by Integrity, a temporary staffing firm. They were assigned to work at a warehouse maintained by Amazon.com where they prepared packages for shipment. All employees had to undergo security screening upon leaving the warehouse each day to reduce theft from the warehouses.
The Plaintiffs filed a lawsuit alleging that the time spent waiting to proceed through the security screenings was compensable under the FLSA. The District Court dismissed plaintiffs' complaint. The Ninth Circuit reversed, holding that when activities are "necessary to employees' primary work" and "done for [the employer]'s benefit," they are compensable as "integral and indispensable" activities.
The Supreme Court reversed the Ninth Circuit, relying on the Portal-to-Portal Act. The Act exempts employers from having to pay workers for the time they spend on activities that take place before and after the workday, for instance, the time it takes an employee to walk from his or her car to the time clock. The Supreme Court held that time spent in connection with the security screening was a "noncompensable postliminary activit[y]" under the Act, as they "were not the 'principal . . . activities which [the] employee is employed to perform.'" The Court also found the security screenings were not "integral and indispensable" to the employees' work.
Read the case here.
In early December, the Illinois Senate voted 46-4 to prohibit recording private conversations without the consent of everyone involved. The House of Representatives also voted in favor of the new eavesdropping bill. The legislation is now before Gov. Pat Quinn for signature before it becomes law but it is unclear whether he will sign it.
The legislation is intended to replace the’ previous law, which, at least in part, was declared unconstitutional by the Illinois Supreme Court last spring.
The previous law, forbade any recording of anyone without consent from all parties involved. The new legislation distinguishes between “private” conversations and those that “cannot be deemed private,” such as a loud argument on the street. The recording of private conversations, without everyone's consent or a warrant, remains illegal.
Read the proposed bill here.
Three employees filed a retaliatory discharge suit against Precision, a soybean seeds business. They claimed that Precision fired them in retaliation for reporting Precision to the State for shipping underweight product. The Circuit Court entered judgment for Precision; the Appellate Court reversed. The Illinois Supreme Court reversed the Appellate Court, affirming the Circuit Court. Michael v. Precision Alliance Group, LLC, 2014 IL 117376 (December 4, 2014).
The Illinois Supreme Court explained that retaliatory discharge claims are a narrow exception to general rule that employees are at-will. Precision's reason for firing one employee was because of an accident resulting from horseplay. Precision's reason for firing the other two employees was a reduction in workforce. Because the Circuit Court found Precision's reasons for firing the plaintiffs to be valid and nonpretextual, the plaintiffs did not prove element of causation.
Thus, if an employer successfully presents a nonpretexual reason for firing an employee, a plaintiff cannot meet his or her burden of proof for establishing causation in a retaliatory discharge case.
On December 3, 2014, the U.S. Depart of Labor announced a final rule to protect workers from discrimination based on sexual orientation and gender identity in the federal contracting workforce. The rule implements Executive Order 13672, which was signed by President Obama on July 21. That Order tasked the DOL with updating Executive Order 11246 to add gender identity and sexual orientation to the classes it protects. While several states, including Illinois, already forbid workplace discrimination based on sexual orientation, the Order was the first federal action to ensure workplace equality in the private sector based on sexual orientation.
The final rule will become effective 120 days after its publication in the Federal Register and will apply to subsequent federal contracts. Find more information here.
Former employee, Ms. Taylor-Novotny, sued claiming that her employer fired her because of her disability, caused by multiple sclerosis, and failed to accommodate her disability, among other things, in violation of the Americans with Disabilities Act (ADA). The District Court granted the employer's motion for summary judgment and the Seventh Circuit affirmed. Taylor-Novotny v. Health Alliance Medical Plans, Inc., No. 13-3652 (November 26, 2014).
The Seventh Circuit held that the record showed that the employer fired Ms. Taylor-Novotny after she: (1) developed a history of being tardy at work; (2) falsified documents to inflate her number of work-related calls to customers; and (3) failed to complete her projects in a timely manner. Accordingly, she could not establish that she was performing her job in acceptable manner.
Furthermore, Ms. Taylor-Novotny did not establish that her requests for accommodation were reasonable because her employer provided her several accommodations but only refused to allow her to swipe her badge to register her presence at work and Ms. Taylor-Novotny did not identify any limitation this would alleviate.
Employee Whitacker claimed that her employer, as a joint employer, discriminated against her because of her disability by refusing to extend her period of medical leave, failing to transfer to different position, and firing her in violation of the Americans with Disabilities Act (ADA). The District Court granted the County’s motion for summary judgment. The Seventh Circuit affirmed. Whitacker v. Milwaukee County, Wisc., No. 13-3735 (November 25, 2014).
The Seventh Circuit explained that while the County was plaintiff’s employer, the record showed that the relevant decision-makers were employed by different entity (the State of Wisconsin), and therefore Whitacker could not pursue her ADA action against the County, as the County played no role in the adverse acts.
Employee Widmar brought suit claiming that the Sun fired him because of his age. The District Court granted the employer’s motion for summary judgment. The Seventh Circuit affirmed. Widmar v. Sun Chemical Corp., No. 13-2313 (November 19, 2014).
Widmar, 51, was fired after Sun accused him of poor job performance arising out of several problems that occurred in a manufacturing plant that he managed. Widmar claimed he was blamed for failures that were not within his control. For example, some problems were due to a flawed chemical formula and Sun’s use of cheap, faulty materials.
While Widmar presented evidence that others within plant were responsible for those problems, Sun explained that it expected plant managers must accept responsibility over all aspects of a plant – even those outside the manager’s control. The Seventh Circuit held that Widmar failed to provide evidence that Sun's job expectation with respect to appropriate role of plant manager was pretext for age discrimination. “Even if Roberts blamed Widmar for problems that he knew were not Widmar’s fault, this makes Roberts a bad manager, not a perpetrator of illegal discrimination.” Widmar further failed to show that Sun Chemical treated younger, similarly-situated managers more leniently.
Judge Shadur dismissed plaintiff’s Title VII complaint with prejudice, where she alleged that the defendant union failed to refer her certain driving jobs because of her gender. Shadur reasoned that the plaintiff knew of the "boys club" and that "None of the things about which she now complains . . . was a mystery to her.” Further, those things started before the 300-day period of her EEOC charge. Stuart v. Local 727, International Brotherhood of Teamsters, No. 14-1710 (November 14, 2014).
The Seventh Circuit reversed. It noted that the record showed that Stuart never received any referrals in 4.5 years, even though there had been no shortage of driving jobs in said time period, and although defendant raised statute of limitations defense, record contained factual dispute regarding whether any referrals to others occurred within applicable 300-day limitations period. Further, Shadur was incorrect in his belief that plaintiff’s “failure to refer” claim was not actionable under Title VII.
Finally, "Because of the abruptness and irregularity of the district judge’s handling of this case . . . and the unmistakable (and to us incomprehensible) tone of derision that pervades his opinion," the Seventh Circuit remanded to a different district judge.
Director of Medical Laboratories, Cindy Flick, raised concerns about her employer's compliance with federal regulations. Shortly thereafter, she was presented with a severance agreement. She did not resign and was not fired. Two years later, Flick was again offered a severance agreement, refused to resign, and was fired. The Circuit Court granted the employer's motion for summary judgment.
The Appellate Court affirmed, holding that Flick failed to present evidence establishing causal connection between her raising concerns and her termination. Flick v. Southern Illinois Healthcare, NFP, 2014 IL App (5th) 130319 (November 5, 2014). Furthermore, Flick had not engaged in protected activity for nearly two years prior to being fired, and she offered no evidence to support inference of retaliatory motive.