Gay marriage
Yesterday, the U.S. Supreme Court held that the Due Process Clause of the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges (June 26, 2015).

In the underlying suit, James Obergefell sued when Ohio refused to recognize his marriage to John Arthur, who died in 2013. 

Justice Kennedy wrote the majority opinion in the 5-4 decision, joined by Justices  Ginsburg, Breyer, Sotomayor and Kagan. Justice Kennedy wrote, "No longer may this liberty be denied.” He concluded, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”

In his dissent, Chief Justice Roberts wrote that the Constitution had nothing to say on the subject of same-sex marriage: “. . . by all means celebrate today’s decision. . . But do not celebrate the Constitution. It had nothing to do with it.” Also in dissent, Justice Scalia mocked the language of Justice Kennedy's majority opinion, “Of course the opinion’s showy profundities are often profoundly incoherent.”

 
 
ADA
Employee, a physician, sued his former employer under the Americans with Disabilities Act (ADA) after it fired him because its evaluator opined that his short-term memory issues made him unfit for duty. Stern v. St. Anthony's Health Center, No. 14-2400 (June 4, 2015). The District Court granted the defendant's motion for summary judgment and the Seventh Circuit affirmed.

The Seventh Circuit agreed with the plaintiff that employer had never engaged in the required interactive process to determine whether there were any appropriate accommodations for the plaintiff, even though the defendant's staff talked amongst themselves about potential accommodations. Despite that, the plaintiff could not prevail on his ADA claim because he failed to show that he could have performed his job with or without accommodations.

The Seventh Circuit noted that the defendant's duty to accommodate did not require it to remove of any of his essential job duties. Furthermore, the plaintiff's physician only stated that it was "possible" that plaintiff could perform his job under certain proposed accommodations, which was insufficient evidence that the plaintiff could actually perform his job, as the physician's suggested accommodations were untested.

 
 
Three plaintiffs (Castro, Brooks, and Florez) sued their former employer for retaliation under Title VII, alleging that they were fired after complaining about their supervisor's racially and ethnically derogatory remarks. Castro v. DeVry University, Inc., No. 13-1934 (May 13, 2015). The employer moved for summary judgment and the District Court granted it on all three retaliation claims. The Seventh Circuit reversed on Florez's retaliation claim. 

The Seventh Circuit held that Florez raised a genuine issue of material fact about retaliatory motive. He was fired 10 months after his complaint for two stated reasons: (1) inconsistent performance and (2) his “volatile behavior.” However, DeVry conceded that Florez’s performance did not justify his termination. Florez also offered evidence that DeVry’s “volatile behavior” explanation was a pretext for retaliation. Namely: (1) his managers did not honestly believe that he had acted unprofessionally; (2) defendant had falsely told EEOC that plaintiff's manager - who made the key recommendation for his firing - was unaware of plaintiff's prior complaint, when in fact she did know; and (3) an email recommending his termination referred specifically to  his complaint about the supervisor’s remarks.

The Seventh Circuit affirmed regarding Castro and Brooks' claims, holding that the record showed that Castro was fired and Brooks was fired for dishonesty/inconsistent performance and neither raise a genuine issue of material fact on whether these reasons were pretexts for retaliation.


 
 
IDES Logo
The Illinois Department of Employment Security (IDES) Board of Review found that Plaintiff Weinberg was ineligible for unemployment benefits because he was a partner at the company. Weinberg v. The Dept. of Employment Security, 2015 Ill. App. (1st) 140490 (May 11, 2015). 

More specifically, his compensation as a partner did not constitute "wages" as defined by Section 5009(E) of the Unemployment Insurance Act. The Circuit Court revered the Board's decision, finding that a portion of his income constituted wages.

The Illinois Appellate Court affirmed the Board and reversed the Circuit Court. The Appellate Court noted that the record contained evidence of Plaintiff's partnership status, including partnership agreement he signed, compensation includes guaranteed payment derived from partnership profits, and monthly amount based on client base, and tax reporting (K-1). Thus his renumeration  did not constitute "wages" as defined by the Act.

 
 
Window Washers
The Illinois Department of Employment Security (IDES) determined that window washers who performed services for a company were employees for purposes of Unemployment Insurance Act. L.A. McMahon Building Maintenance, Inc. v. Department of Employment Security, 2015 Ill. App. (1st) 133227 (May 7, 2015).

The Circuit Court upheld that determination and the Illinois Appellate Court affirmed.

The Appellate Court held that the elements of Section 212 of the Unemployment Insurance Act, not the "independent contractor" agreements between company and window washers, dictate whether the relationship is that of an employer-employee or that of employer and independent contractor. 


The inability of the company to satisfy any one Section 212 conditions will defeat company's claim for independent-contractor exemption. Although the window washers were not required to wear company uniform, the window washers represent the company's interests when they provide services at customers' homes, provide customers with company business cards and invoices, and provide window washing services to customers' and company's specifications.

 
 
OSHA Logo
There was a workplace accident in which an employee was trapped in 18-foot bin containing sand. DuKane Precast, Inc. v. Perez, No. 14-3156 (May 4, 2015). That employee incurred injuries when co-workers could not quickly extract him. The employer was charged with four violations of OSHA. 

One such willful violation concerned the employer's delay in calling 911 and its failure to prevent co-workers from attempting a dangerous rescue of the employee. The supervisor acted recklessly and therefore "willfully" in failing to recognize either danger of trapped employee or applying safety procedures.

The ALJ determined that the employer did in fact commit the four OSHA violations.  The employer petitioned for review. The Seventh Circuit held that the record contained sufficient evidence to support ALJ's determination. Thus, the petition was denied.


 
 
Seventh Circuit Seal
A former member of a law firm sued the firm for breech of his employment contract. Hess v. Kanosky Bresney, No. 14-1921 (May 4, 2015). The member sought legal fees from the settlement of cases worked on by him that the firm had received after he had been fired. The firm moved for summary judgment. The District Court granted the motion.

The Seventh Circuit affirmed.  It held that the terms of the contract allowed the former member to obtain percentage of legal fees received by the firm during time of his employment. Moreover, at time the member was fired, there was no guarantee that any of his efforts would result in contingent fees accruing in cases at issue. As such, the plaintiff had no right under agreement to fees received from cases that had settled after effective date of his termination.

 
 
The Supreme Court held that a courts have authority to review whether the EEOC has fulfilled its statutory obligation to attempt conciliation of claims before suing an employer for employment discrimination under Title VII. Mach Mining v. Equal Employment Opportunity Commission (12-1019) April 2, 2015. 

However this review is narrow, enforcing only the EEOC's statutory obligation under 42 U.S.C. § 2000e-5(b) to give the employer notice and an opportunity to achieve voluntary compliance.

The EEOC has extensive discretion under Title VII to determine what kind and amount of communication with an employer is appropriate in any given case. Thus, the Court made held: "A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement."

However, should the obligation not be met, the remedy is not dismissal, but remand to the EEOC for further settlement efforts. "Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. See §2000e-5(f)(1) (authorizing a stay of a Title VII action for that purpose)." 

 
 
Clock spiral
Plaintiffs (window-washers) sued defendant for overtime pay under Fair Labor Standards Act (FLSA). Alvarado v. Corporate Cleaning Services, Inc., No. 13-3818 (7th Cir. April 1, 2015). The employer moved for summary judgement and the District Court granted the motion, finding that the defendant was not required to pay plaintiffs overtime pay under FLSA.

The Seventh Circuit affirmed. It held that the record showed that: (1) plaintiffs' regular pay exceeded 1.5 times federal minimum wage; (2) more than half of plaintiffs' compensation was in form of commissions pursuant to a "point system;" and (3) defendant's business qualified as retail or service establishment. The Seventh Circuit also held that the fact that plaintiffs worked irregular hours and days at various times of year that often included working more than 8 hours per day justified exemption from overtime pay requirement. 

The Seventh Circuit rejected plaintiff's argument that the defendant did not qualify as retail or service establishment since, according to plaintiffs, defendant's sale of its window-washer services lacked retail concept. 

 
 
Police
The City of Des Plaines fired Police Officer Bueno after investigating allegations that he used unnecessary or excessive force against arrestees and failed to report it. City of Des Plaines v. Metropolitan Alliance of Police Chapter No. 240, 2015 Ill. App. (1st) 140957 (March 31, 2015). The Union, representing Bueno, submitted his grievance to arbitration. The arbitrator concluded that Bueno had violated certain General Orders, but found that his termination was not appropriate based on due process concerns - namely City's delay in investigating and department's condoning conduct. 

The City filed a motion to vacate the arbitration award as it violated public policy. The circuit court agreed with the City but also denied the Union's motion to remand to the arbitrator for additional findings concerning Bueno's likelihood of engaging in the same misconduct following reinstatement. The Union appealed.

The Appellate Court reversed the circuit court's judgment and remand the matter for further proceedings.  It held that 
the arbitrator's award was incomplete, as it did not include any findings from which to infer that the arbitrator found Bueno was unlikely to reengage in offending conduct upon his reinstatement, which is necessary to fully assess public policy implications of reemployment.