NLRB: McDonald's Joint Employer
The National Labor Relations Board (NLRB) announced that it issued complaints against McDonald's franchisees and their Franchisor, McDonald's USA, LLC as a joint employer. 

It brought 13 complaints involving 78 charges against McDonald’s out of several regional offices throughout the United States including Chicago for claiming that McDonald's and its franchisees subjected employees who participated in union-related activity to discriminatory discipline, reductions in hours, discharges, and other coercive conduct as well as over-broad restrictions on communicating with union representatives or with other employees about unions and the terms and conditions of employment.

To conserve resources and to avoid delay, the NLRB consolidated the hearings to three locations in the Northeast (Manhattan), Midwest (Chicago) and West (Los Angeles) and the initial litigation will commence on March 30, 2015.

The NLRB is asserting that McDonald’s can be liable as a “joint employer” with its franchisees, despite the fact that many of the alleged violations were committed by franchise owners. Of course, McDonald’s requires its franchisees to adhere to a number of rules and regulations.

 
 
Discipline Notice
Sklyarsky sued his former employer, Means-Kraus, for firing him from his janitor position because of his national origin and in retaliation for filing a charge with the EEOC in violation of Title VII and Section 1981. Means-Kraus moved for summary judgment, which the District Court granted. The Seventh Circuit affirmed. Sklyarsky v. Means-Kraus Partners, L.P., No. 13-3302 (January 29, 2015).

Sklyarsky alleged that his supervisor mocked his mixed use of Ukrainian and Polish in front of his co-workers. The record showed, and he did not dispute, that he incurred five reprimands including two suspensions in less than three years. Therefore, he failed to establish that he was meeting Means-Kraus' legitimate employment expectations. The Seventh Circuit held that that failure doomed his discrimination claim under the indirect method of proof. Furthermore, he failed to provide evidence of similarly-situated employees being treated more favorably. 

Sklyarsky also could not establish his retaliation claim as his only evidence of retaliation was a 6-month gap between his complaint of discrimination and his termination.

 
 
Taxes as Title VII Remedy
The EEOC brought suit alleging that an employee was fired in retaliation for making discrimination complaint in violation of Title VII. EEOC v. Northern Star Hospitality, Inc., No. 14-1660 (January 29, 2015). The original employer dissolved and two companies Properties and Holdings had emerged, which were exclusively owned by defendant’s owner and employed over half of defendant’s employees. There was a bench trial on whether the new entities could be held liable for Hospitality's actions. It ruled that there was liability under two theories (1) piercing the corporate veil and (2) successor liability.

The jury trial then commenced and Miller was award compensatory damages. The jury did not award punitive damages. The court denied front pay, but granted pack pay and tax-component awards. The only question on appeal was what remedies were available to make the employee whole.

The Seventh Circuit held that the District Court did not err in finding that two entities controlled by defendant-employer’s owner could be held liable under successor liability principles for plaintiff’s damages, and that plaintiff was also entitled to additional damages associated with increased tax liability resulting from receipt of back-wage award as the record supported the District Court’s finding that Miller's receipt of lump sum $43,500 back pay award would bump him into higher tax bracket than what he would have been paid had he received said wages evenly throughout time of lawsuit.


 
 
On January 14, 2015, the Illinois Appellate Court affirmed a jury verdict in favor of the defendant in a state court age discrimination lawsuit brought under the Illinois Human Rights Act (IHRA).  Cipolla v. Village of Oak Lawn, 2015 IL App (1st) 132228.  

Employee Cipolla filed a charge of discrimination with the IDHR and then a state court complaint in Cook County, alleging that the Village fired her because of her age in violation of the IHRA.  After a four-day trial, the jury returned a verdict in favor of the Village.

Cipolla appealed, arguing (1) that the trial court should have given the jury a "cat's paw" liability jury instruction.  The Appellate Court held that
 there was no evidence that the decision-maker blindly relied on a non-discision maker manager in connection with his employment decision to terminate the plaintiff or that the non-decision maker had a discriminatory intent. Thus, the cat's paw jury instruction was unwarranted and the trial court did not err in refusing to give it.

Cipolla also argued (2) that the trial court erred by refusing to clarify for the jury the meaning of the word "fired."  While the jurors were deliberating, they requested that the judge define the term "fire."  The trial judge held that it was a factual question and instructed the jury to resolve its questions by reviewing the evidence and referring to the jury instructions.  The Appellate Court agreed. 

Finally, the Appellate Court found that the jury instructions approved by the trial judge accurately and sufficiently stated Illinois law on the elements a plaintiff is required to prove to win an employment discrimination case.  Illinois Pattern Jury Instructions provide that the plaintiff has the burden to prove: (1) that the plaintiff was an employee of the defendant; (2) that the plaintiff was fired from her employment with the defendant; (3) that the plaintiff was fired because of her age (or other protected classification); and (4) that the plaintiff sustained damages as a result her firing.

 
 
Chess pieces
Greengrass filed an EEOC charge, the employer was notified, and then around January 2009, the employer received a notice that the EEOC intended to interview witnesses in connection with Greengrass' claim. On April 6, 2009, in its next SEC filing, the employer identified Greengrass and her charge in the pending litigation section of the report. It stated that she had filed a complaint, but the employer believed it to be meritless. Greengrass filed another EEOC charge, for retaliation based on the employer naming her in its SEC filing and later filed her lawsuit.

The district court granted summary judgment in favor of the employer on the basis that the Greengrass failed to establish a causal connection between her EEOC filing and the alleged retaliation. The 7th Circuit reversed, finding that Greengrass established a claim for retaliation as there was enough evidence for a jury to conclude that there was a causal connection. Greengrass v. International Monetary Systems, Ltd., No. 13-2901 (7th Cir., 1-12-2015).

The Seventh Circuit held that:
(1) Greengrass engaged in a protected activity by filing her charge.
(2) Listing her name as a litigant in publicly available filing is adverse employment action as post-termination retaliation that harms an employee's employment prospects is unlawful and an employee's decision to file a charge could be negatively viewed by prospective employers.
(3) A reasonable jury could conclude that the employer retaliated against Greengrass after receiving of the witness interview notice. The three-months between the notice and filing was close enough to be suspicious. Further, there was evidence of retaliatory animus in (a) an email from the employer that expressed disdain for the EEOC process and against Greengrass for filing her complaint and (b) inferred from the company's decision to forward the plaintiff's complaint to her alleged harasser. Finally, evidence of pretext existed as multiple shifts in the company's SEC filing policy raised doubt about the company's reasons for its employment decision.
Thus, summary judgment was inappropriate.


 
 
On January 4, 2015, Illinois Governor Quinn signed the Illinois Secure Choice Savings Program Act (S.B.2758). This law applies to Illinois private employers: (1) with 25 or more employees; (2) that have been in business for at least two years; and (3) do not already offer their employees retirement benefits.

By June 1, 2017, covered employers will have to provide employees with a retirement savings plan.  The plan is a mandatory 3% payroll wage deduction deposited into a state-run retirement fund.  However, no employer contributions are required.

There is an opt-out provision for employees who do not want to participate in the program.  Those who do not opt-out will be automatically enrolled. 
 
 
Employee Ani-Deng sued her former employer for sex and national origin discrimination and retaliation. The District Court granted the employer’s motion for summary judgment and the Seventh Circuit affirmed. Ani-Deng v. Jeffboat, LLC, No. 14-2155 (January 27, 2015).

The Seventh Circuit held that the record showed: (1) that Jeffboat demoted Ani-Deng to a lower paid, less demanding welder job after she experienced two episodes of dizziness/nauseous symptoms while welding in confined spaces; and (2) 
the record further showed that Jeffboat later laid the plaintiff off as part of general reduction in force.  Jeffboat issued a letter recalling her to her position, but required she notify Jeffboat of her intention to return within five working days.  Her husband responded on the fifth day, but after the close of business, so her response was not timely.

The Seventh Circuit held that the plaintiff was demoted "because of the company’s safety concerns, which seem entirely legitimate given the dangerousness of the work and the incidence of safety violations." Furthermore, the Seventh Circuit noted that the only evidence to support plaintiff's discrimination and retaliation claims was an affidavit from co-worker, who made only general claims of discrimination and failed to include facts demonstrating personal knowledge. Thus, summary judgement was proper.
 
 
Picture
In general, independent contractors are not covered by anti-discrimination laws. However, many people classified as contractors are misclassified and are really employees. 

For the most part, if your employer controls the time, place and manner of your work, you are an employee. For instance, if your employer can discipline you, tell you how to do your work, have to approve vacation time, and you cannot hire an assistant if you want, these are also signs that you are an employee.

There's a handy form the IRS has, the SS-8, that you can fill out and the IRS will do the work for you of determining whether you are a contract employee or independent contractor.

If you are a contract employee and not an independent contractor, then you are covered by anti-discrimination laws (assuming the other statutory requirements are met). 


Just remember that there may be a question as to who is liable - your actual employer (like a temp agency) or the company for whom you provide services. If you haven't reported it the discrimination to the employer who writes your checks, it is likely a good idea to do so. If the company that you are providing services for controls your work and you enough, they may be a joint employer and also be liable. 

 
 
Dollar bill
For the first time since 1957, filing fees for reviewing courts in Illinois increased on January 1, 2015. 

Appellants filing cases in the Supreme and Appellate Courts will pay a filing fee of $50 instead of $25. Appellees will see filing fees increase from $15 to $30.

Under Public Act 98-0324, fees collected by the Clerks of the Supreme and Appellate Courts will be set by Supreme Court Rule, rather than by statute. Further, those fees will now be placed in the “Supreme Court Special Purposes Fund,” which will be used for e-business projects, including upgrading the case management system.


 
 
On December 19, 2014, both Jorge L. Alonso and John Robert Blakey received their federal judicial commissions and now are both US District Court Judges for the Northern District of Illinois. Judge Alonso previously served as a Cook County Associate Judge, and Judge Blakey served as the Chief of Special Prosecutions Bureau for the Office of the Cook County State’s Attorney.