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Much has been said about Fort Bend County, Texas v. Davis, No. 18-525 (June 3, 2019) in the past 24 hours.  Some articles make it sound as if a Title VII aggrieved party can bypass the EEOC’s charge-filing requirement, file a discrimination lawsuit, and all will be well.  Not so.  If a Title VII aggrieved party does just that, a respondent employer will likely filed a motion to dismiss in the court case for failing to exhaust administrative remedies.  As the court’s opinion clearly intimated, it would be foolhardy for a party to do just that only to end up…
The Third District Appellate Court answered “yes” to the certified question of whether the Illinois Gender Violence Act, 740 ILCS 82/5 et seq. (“Act”) applies to legal entities, such as a corporation.  Gasic v. Marquette Management, Inc., 2019 IL App (3d) 170756. The Act creates a cause of action against a person or persons that perpetrate gender-related violence, such as an assault or battery.  The Act defines “perpetrating” as “either personally committing the gender-related violence of personally encouraging or assisting the act or acts of gender-related violence.”  740 ILCS 82/10. When defining terms in a statute, the court was persuaded…
An employer may decide to have its workforce closely mirror the local population to which it serves.  For instance, a store frequented by predominantly Spanish speakers may require management to hire Spanish-speaking or bilingual employees.  Some, if not most of the employees that fall into this category, may be Hispanic. This business practice was attacked by the Equal Employment Opportunity Commission (E.E.O.C.).  In E.E.O.C. v. AutoZone, Inc., et al., No. 15-3201 (7th Cir. June 20, 2017), the E.E.O.C. brought suit on behalf of a Black worker who was transferred from one of defendant’s stores that served predominantly Hispanic customers to…
Employees who are terminated for statutory “misconduct” are ineligible for benefits under the Illinois Unemployment Insurance Act (“Act”).  “Misconduct” means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.  820 ILCS 405/602A.  Thus, not every type of “misconduct” results in ineligibility, much to an employer’s dismay. Under Public Act 99-488, effective January 3, 2016, the…
On January 21, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued its “Proposed Enforcement Guidance on Retaliation and Related Issues” (“Guidance”) for public comment.  The EEOC’s last Guidance on this topic was May 1998, so this is a major update.  As expected, it contains employee-friendly positions that will no doubt open the doors to more retaliation complaints. Title VII’s Participation Clause.  Title VII of the Civil Rights Act of 1964, as amended, prohibits not only status-based discrimination (discrimination based on characteristics), but also retaliatory discrimination against individuals who “participate” in discrimination investigations and who may “oppose” discriminatory practices or behavior. …
Illinois appellate courts have adopted a bright-line rule that requires at least two years of employment for a restrictive covenant’s (e.g. covenant not to compete) enforceability.  This means that an employee must work at least two years with the employer in order for the employer to enforce the restrictive covenant.  In a recent case, one justice filed a dissenting opinion criticizing this approach, and advocated for a case-by-case determination.  McInnis v. GAG Motorcycle Ventures, Inc., 2015 IL App (1st) 130097, ¶ 55 (Ellis, J., dissenting). Some federal courts in Illinois that have dealt with this exact issue have rejected the…
In a recent Colorado Supreme Court decision, Coats v. Dish Network, 2015 CO 44 (June 15, 2015), an employee who used medical marijuana was terminated after failing his employer’s drug test.  He sued his employer claiming that Colorado’s Lawful Activities law prevented his employer from discriminating against him based on “lawful” conduct, such as being a registered medicinal marijuana user.  His employer argued that while medical use was permitted under state law, marijuana is still a Schedule I controlled substance (and hence” unlawful”) under federal law, there being no exception for medical use.  The Colorado Supreme Court agreed with the employer.…
Pregnancy Discrimination The Illinois Human Rights Act was amended to now prohibit discrimination based on pregnancy and childbirth. Payroll Cards Illinois employers can now pay employee via payroll card.  The payroll card is linked to the employer and the employer deposits the employee’s wages to the card.  The new law is very specific as to how the payroll card is to operate. Retirement Savings Illinois passed the Secure Choice Savings Program Act which requires covered employers to establish retirement savings accounts for employees. Cook County Wage Theft Ordinance Cook County passed a wage theft ordinance that would bar employers from…
Employers terminating employees for violating a company drug policy should pay close attention to the policy’s phraseology.  In Eastham v. The Housing Authority of Jefferson County, 2014 IL App (5th) 130209, the employer’s drug policy prohibited the use of alcohol and controlled substances “while in the course of employment.”  The employee admitted using cannabis weeks earlier and that he may fail a random drug test.  The employee was fired for violating the policy, but the test came back negative. The appellate court affirmed the circuit court’s decision that the employee did not engage in “misconduct,” a three-pronged test, under the…
No business likes not getting paid or compensated for the value of its services, especially when the right to payment is protected under state law.  This rings especially true for towing companies that perform relocation towing under the Illinois Commercial Relocation of Trespassing Vehicles Law or police towing under Chapter 4, Article II of the Illinois Vehicle Code (625 ILCS 5/4-200 et seq.).  Under applicable Illinois law, towing companies are given “possessory liens” for towing and storage fees, which means that until those fees are paid, the tower can “possess” the vehicle.  However, vehicle owners have found a nice antidote…
On January 19, 2013, Lyon Workspace Products, L.L.C., and its affiliates and subsidiaries, filed for Chapter 11 bankruptcy protection under case number 13-02100.  On May 20, 2014, the bankruptcy court approved the debtors’ joint liquidation plan.  Part of the plan’s assets included the right to file actions under chapter 5 of the Bankruptcy Code, namely, preferential avoidance complaints under 11 U.S.C. Sec. 547(b).  This power is held by the Liquidating Trustee. Under Section 547(b), payments made by debtors to creditors on account of antecedent debts and made within 90 days of the bankruptcy petition being filed are presumed to be avoidable…
Illinois became the 12th state to enact a “ban the box” law.  This refers to the practice of requiring applicants for employment from checking a “box” on an application form disclosing whether the applicant has ever been arrested or convicted of a crime.  The Illinois law, referred to as the Job Opportunities for Qualified Applicants Act (“Act”), takes effect on January 1, 2015.  Section 15(a) of the Act precludes employers from inquiring about, considering or requiring the disclosure of the applicant’s “criminal history.”  This no doubt refers to arrests and convictions.  The employer can only make such an inquiry once…