Employment & Labor

Earlier this year, the Department of Labor made clear in an opinion letter that neither an employee nor an employer may decline FMLA leave where an eligible employee is absent for an FMLA-qualifying reason.  As the DOL noted in this March 2019 opinion letter, this is particularly true even where the employee would prefer that the employer delay the designation of FMLA leave. This week, the DOL doubled-down on that opinion letter. Notably, the DOL’s earlier missive to the masses failed to address how an employer should administer FMLA leave in a union environment where a collective bargaining agreement specifically allows…
September 11, 2019 by Leave a Comment   Previously, we have discussed here and here whether a plasma center is a place of public accommodation under title III. That discussion shows there is already a split in the Circuit Courts on the issue. On August 30, 2019, the Third Circuit weighed in on this in Matheis v. CSL Plasma Inc., A published decision. They came down in favor of a plasma center as a place of public accommodation. The facts in this case are pretty straightforward. Here, you have a retired police officer with PTSD who routinely and…
Synopsis: IL Risk/HR Managers Have to Catch Up to New Salary History “Gotcha” Law.   Editor’s comment: The reason I call this a “Gotcha” law is the defenses are basically stripped away to expand reserves/exposures. The mistakes that may cost your company thousands in awards and opposing counsel’s attorneys fees which could become common. The mistakes could be innocent. You have less than three weeks to insure personnel folks in the hiring part of your company know what they have to do and NOT do.   Please note Brad Smith, J.D. is our top employment law defense attorney/partner and can…
Top Verdict recently reported that two of our wage and hour class action cases were on its “Top 50 Settlements in Illinois in 2018”   Our settlements were ranked 37 and 41st in the state.   One of the settlements was an overtime class action we bought against WeatherTech (Bolingbrook, Illinois) and the other was an overtime class action we brought against Heights Tower Service of Yorkville, Illinois.…
Lawmakers’ Attention Likely To Turn Back To Paid Sick Leave Legislation This Fall With so many new major Illinois employment laws already enacted this year, even the most well-informed HR professionals would be forgiven if they felt unable to predict and plan for the next wave of workplace legislation likely to come down the pike before year’s end. Fortunately, Springfield lawmakers signaled their intentions on August 2, 2019 when Governor Pritzker signed into law the Illinois Donor Protection Act (IDPA). You can read the law here. At first blush, to private sector employers, the IDPA might appear insignificant. Most…
Exit interviews are usually perfunctory and meaningless for two reasons: departing employees don’t really care to provide insight to a company they’re leaving, and organizations tend to brush off these remarks. According to a 2018 survey by HR Bartender, most employees leave for better compensation and benefits, increased opportunities for advancement, more supportive managers, and flexible work schedules. However, if companies take the approach that they can’t increase wages, create additional opportunities for advancement, or let employees work from home three days a week, they may consider exit interviews a waste of time. But often, employees may be leaving for…
Today’s blog entry explores the question of when does a statute of limitations begin to run in an ADA case not dealing with a failure to accommodate. It also explores the question what might an ADA grievance procedure look like. Our case of the day is Endres v. Northeastern Ohio Medical University decided by the Sixth Circuit on August 30, 2019. As usual, blog entry is divided into categories and they are: key facts; ADA statute of limitations was not missed; due process claims and qualified immunity; what does due process in a disciplinary matter look like; and takeaways. Of…
Synopsis: Here are “Brown Bag Luncheon” IL WC Claims Analyzed by the Bi-Partisan WLCA Editors’ for your consideration. I give strong credit to the WCLA team that created this analyses for public consumption.   Editor’s comment: Your Editor is adding my “defense-only” comments. I admit to being somewhat biased because, well, I am. Please take my opinions with at least a grain or three of salt. I sometimes think I am perfect to find out, Ooops.   Employer-Employee: Coleman v. AKMG, 18 I.W.C.C. 703 (IWCC November 16, 2018)   At Arbitration, the primary issue was whether Petitioner was an employee…
Question:       I own an interest in a limited liability company with others through which we operate a professional service business. Our company holds a significant amount of assets largely consisting of equipment, accounts receivable and cash. How can we protect the company assets from creditors in a tax-effective manner? Answer:          There are various actions you can take to protect limited liability company (“LLC”) assets from creditors.  As a professional, your greatest liability concern is likely malpractice creditors.  Procuring and maintaining professional liability insurance is no doubt the best form of protection from clients and others  who file malpractice claims  against the…
Time is Now to Comply with Salary History Law Many Illinois employers returning from summer holiday are facing a rude awakening as they discover that they now have less than a month – until September 29, 2019, to be precise – to revamp longstanding hiring practices or face sizable liability. As we previously reported here, earlier this summer Governor J.B. Pritzker signed into law a bill adding new teeth to Illinois’ Equal Pay Act. The reforms aim to chip away at the persistent national gender pay gap, by prohibiting employers from inquiring into job applicants’ pay history in…
Our client, a former senior sales representative of a  large publicly traded Swiss medical device manufacturer, prevailed in a temporary restraining order hearing before Judge Tharpe in Chicago federal court on Thursday.   The company alleged that our client violated his non-solicitation agreement by working (on behalf of competitors) with surgeons and sought to restrain him from doing so on an emergency basis.  The lawsuit alleged breach of an employment contract, violation of federal and state trade secret laws, and sought emergency injunction relief.  We argued that the non-compete, non-solicitation, and confidentiality agreements were too broad and therefore unenforceable.   Following this…
Most employers that pay their outside sales representatives on a commission basis do so because of long-established practices, rather than a sound understanding as to how the Fair Labor Standards Act (“FLSA” or “Act”) impacts such a compensation practice.  Generally, the Act requires employers to pay their non-exempt employees compensation at a rate equal or greater than the federal minimum wage and overtime pay if employees work more than 40 hours in the same workweek.  The FLSA, however, includes an exemption from both its minimum wage and overtime obligations for outside sales representatives that satisfy the law’s requirements for the…
Latest Labor Board guidance may create more confusion and risk for HR On August 14, 2019, the National Labor Relations Board ruled in Cordúo Restaurants, Inc. that an employer could change its mandatory arbitration agreement to bar its workers from opting into a class action in response to being sued for wage and hour violations, and that a supervisor’s threatening statements to workers that they would be fired if they failed to sign the agreements did not violate Section 7 of the National Labor Relations Act (NLRA). You can read the full ruling here. Curdúo isn’t a Green Light…
On August 8, 2019, the Department of Labor (DOL) released an Opinion Letter clarifying that parents of students with special education needs may take leave under the Family Medical Leave Act (FMLA) to attend a meeting related to addressing those needs. Importantly, the DOL stated that its analysis and conclusion apply to “any meetings held pursuant to the [Individuals with Disabilities Education Act], and any applicable state or local law, regardless of the term used for such meetings.” The individual who requested the opinion letter stated that their two children had serious health conditions under the FMLA, and that their…
Synopsis: IL Governor JB Pritzker Continues “John Hancocking” New Laws at Record Pace—KCB&A’s Top Employment Lawyer, Brad Smith Wants To Keep You Ahead of Him and Them!   Editor’s comment: As Summer begins its descent into Autumn, new IL laws keep on, keepin’ on. Recently, Governor Pritzker signed sweeping changes to the Illinois legal landscape. Some of these laws directly affect Illinois employers, HR folks and risk managers, so pay close attention. Most of them do not take effect immediately, but they’ll be here shortly.   Work Place Transparency Act   One of those laws is the Illinois Workplace Transparency…
August 26, 2019 by Leave a Comment Today’s blog entry is a case that I have blogged on before twice, here and here. On August 15, 2019, the 11th Circuit came down with its second decision on this case, here. Since I have blogged on it before twice, there isn’t any need to cover the facts except through the court’s reasoning. The prior appeal to the 11th Circuit just discussed the civil rights aspect of the case and not the ADA. This appeal to the 11th Circuit discussed the ADA and revisited the civil rights claims.…