The Seventh Circuit held that the District Court did not err in granting defendant-employer’s motion for summary judgment. Reid et al v. Neighborhood Assistance Corporation of America, No. 13-1768 (April 1, 2014).

In the underlying action, the employees alleged that the employer fired them in retaliation for having complained about the employer's failure to pay them Illinois minimum wage and for failing to abide by state and federal laws regarding handling mortgage applications.

While the employees showed that they were fired shortly after having complained, the employees failed to present any other evidence that cast doubt on the employer's explanation that the employees were fired for violations of the employee's paperless policy, as well as other infractions that included perception of poor customer service and possession of alcohol in one employee's office. The Seventh Circuit further noted that certain co-workers who had made similar complaints had not been terminated. 
 
 
The Seventh Circuit  affirmed the NLRB's findings that employers commit unfair labor practices by refusing to continue to recognize a union that represented the bargaining unit of the employer’s employees after a decertification election.  Heartland Human Services v. N.L.R.B., Nos. 13-1954 & 13-2079 (March 14, 2014).

The employer claimed that the result of election proved that union had lost result of election.  However, at the time that the employer refused to recognize the union, the result of the election indicated that union had won 19 to 18, with one disputed vote ultimately causing a tied vote. The union prevailed in its claim that the employer had committed “objectionable conduct” with respect to said election, such that N.L.R.B. ordered new election.

Accordingly, the Court of Appeals could not review the propriety of the N.L.R. B. order directing a new election, and the employer could not refuse to recognize union - at least until such election took place and until union became decertified. 
 
 
Illinois House Bill 8 seeks to amend the Illinois Human Rights Act to mandate that employers provide pregnant women reasonable accommodations related for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider.

In the proposed amendment, "reasonable accommodations" means actions which would permit such an employee to perform in a reasonable manner the activities involved in the job or occupation including an accessible worksite, acquisition or modification of equipment, job restructuring, and modified work schedule. However, any reasonable accommodations do not include actions that impose an undue hardship on the employer.

The proposed amendment may be voted on as early as this week! Call your state representative and urge them to support House Bill 8 today!
 
 
The Seventh Circuit held that the District Court did not err in granting defendant-employer’s motion for summary judgment in an action alleging violations of the Fair Labor Standards Act (FLSA) because JCG failed to pay employees overtime for time spent at beginning and end of their unpaid lunch period taking off and putting on protective clothing required for working at chicken processing plant.  Mitchell v. JCG Industries, Inc., No. 13-2115 (March 18, 2014).

The Seventh Circuit noted that the Collective bargaining agreement between the union and JCG did not require that half-hour lunch period be compensated, and record showed that instant lunch break was “bona fide” so that JCG was not required to pay plaintiffs for any time taken during lunch period, including time taken to remove and put on protective clothing. 

More interesting, however, is the Seventh Circuit finding that the District Court did not err in finding that actual time used to remove and put on protective clothing was minimal so as to leave issue of compensation for such time to terms of collective bargaining agreement.

This is interesting because Judge Posner did not merely opine on how long the donning and doffing takes.  (The employees testified that it takes 10 to 15 minutes, while JCG said that it takes only 2 to 3 minutes.)  Instead of relying on the evidence presented to the District Court, Posner identified the clothing/equipment that JCG’s plants use and purchased it. Three members of the court’s staff then donned/doffed it as if they were workers at the plant, videotaped the donning/doffing, and timed it.  The results were approximately 110 seconds to remove and put on that equipment.

This standard was not consistent with our appellate process to consider the evidence presented to the lower courts.


Furthermore, if this experiment is extended to juries or other judges, there would be no stoping them from conducting secret experiments.  The flaws of the experiment would never be known, never be subject to question or challenge, and yet will dictate the outcome.
 
 
Yesterday, March 20, 2014, the Illinois Supreme Court opinions in the criminal cases People v. Clark (2014 IL 115776) and People v. Melongo (2014 IL 114852).  In those two cases, the Court unanimously held that the current eavesdropping statute, 720
ILCS 5/14-2,
 is unconstitutional because it is overly broad. 

In Clark, the defendant recorded: (a) courtroom conversations involving himself, his attorney, and the judge; and (b) a hallway conversation with opposing counsel, without consent from any of the individuals.  He was charged under the Illinois eavesdropping statute.  He filed a motion to dismiss, arguing that the section violated his First Amendment rights and his right to substantive due process.  The Circuit Court agreed.  The State appealed to the Illinois Supreme Court.

The Illinois Supreme Court started by noting that the eavesdropping statute was amended in 1994 to prohibit the recording of any conversation unless all parties consented, even if there were no expectation of privacy.  The Court held that because the statute criminalizes the recording of a whole range of conversations that could not be deemed to be private, and because the statute covers a broad array of wholly innocent conduct, it is overly broad.

In Melongo, the opinion stated that the Court's analysis was guided by Clark. Again, the statute was not found to serve any legitimate interest in protecting conversational privacy.  Therefore, the Court held the statute unconstitutional on its face.

 
 
Illinois Freedom of Information Act (which gives public access to government documents and records) has a proposed revision, House Bill 5875.

The proposed revision defines "public body" to include "any State-wide organization 
which receives 75% or more of its funding through contributions from taxing bodies for the sake of membership or dues in order to participate in the organization's activities, including, but not limited to, educational endeavors, legislative initiatives, or a general liability insurance pool."

Rep. Sam Yingling (D-Hainesville) proposed the revision on Feb. 14, 2014 and on March 6 the Bill was assigned to the State Government Administration Committee.  It is now schedule for a House Committee hearing March 20th.
 
 
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On January 1, 2014, Illinois HB0001 became effective, legalizing the medical use of marijuana in specific situations to those issued a registry identification card by the Department of Public Health.  The law protects against  arrest or prosecution for using marijuana.

The Illinois’ law further protect employees from disciplinary action for having or saying they have a medical marijuana card.  However, the new law does not address an employer enforcing its own drug policy.  Therefore, some are concerned that Illinois residents who use of the new medical marijuana law may risk their jobs if their employers have zero-tolerance drug policies. 

There is also risk to an employer who might fire an employee as a result of using medical marijuana.  The Right to Privacy in the Workplace Act, 820 ILCS 55/5(a), states that, with some exceptions, it is illegal for an employer to: "refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours."

As a result of the new law, many employers are revising their drug policies to reflect the new law — and employees are urged to research their workplace's drug policies.


 
 
The Seventh Circuit held that the District Court did not err in granting defendant-employer's motion for summary judgment in a Title VII action.  Wilson v. Cook County, No. 13-1464 (February 10, 2014).

The plaintiff, Wilson, alleged that the defendant's employee, Vanaria, promised Wilson a (phony) job to convince her to give him erotic massages and to engage in sexual conduct. Vanaria went to great lengths to convince Wilson that there was a position and that she was being interviewed, however no position existed and Vanaria had no authority to hire.

The Seventh Circuit explained that Title VII protects job applicants even though there is no employer/employee relationship at time of adverse act.  However, to use Title VII, a plaintiff must at least have been passed over for a job that actually existed before she can claim an "unlawful employment practice."  Therefore, Wilson's failure to hire claim could not succeed since there was no “massage therapist” position to which plaintiff had applied.
 
 
The Seventh Circuit held that the District Court did not err in granting employer’s motion for summary judgment in a Title VII and ADEA action, where the employee claimed that her employer fired her from her because of her age and national origin. Zayas v. Rockford Memorial Hospital, No. 13-2555 (January 30, 2014).

The Seventh Circuit explained that the record showed that Zayas was fired after she sent insubordinate emails to her supervisor after having been warned not to. The fact that Zayas was the oldest technician and that she was replaced by a younger employee alone was insufficient to establish a viable discrimination claim. Additionally, Zayas’s insubordinate emails established that she was not meeting the hospital's job expectations at time she was fired, and Zayas failed to present evidence that other employees were treated more favorably.
 
 
The Seventh Circuit held that the District Court did not err in denying defendant-employer’s motion for summary judgment in an action alleging FMLA violations.  

Despite the employee's loss, there is a silver lining for employees in that the court recognized ongoing care during "pleasure trips."

Employee Ballard claimed that she was fired in violation of FMLA because she spent six days of unapproved absence taking care of her disabled mother during Las Vegas pleasure trip. While the Park District argued that her time spent during trip was not covered under FMLA because the trip was not related to the continuing course of medical treatment, the Court found that time spent on trip was covered under FMLA because Ballard tended to mother’s basic medical, hygienic, and nutritional needs during said trip.

The Court addressed the Park District's concern that employees will abuse FMLA provisions by taking similar leaves by pointing out employers can insist that employees obtain certification for the trip by a medical provider. 

Ballard v. Chicago Park District, No. 13-1445 (January 28, 2014).