The Chicago Employment Law Blog

February 2010 Archives

An allegedly racially biased application test for entry-level Chicago firefighter positions is at the center of a US Supreme Court case brought by 6,000 African-American applicants, Workforce Management reports. According to LawMemo, oral arguments in the case, Lewis et al v. City of Chicago, began earlier this week.

Illinois employment lawyers and labor attorneys across the country are eagerly awaiting the high court's decision in the federal employment discrimination case.

A group of 6,000 African-American applicants for Chicago firefighter positions sued the city of Chicago because of an examination that excluded a disproportionately large majority of a protected class of invididuals. The City of Chicago does not dispute allegations that the exam was biased, but bases its position on a technicality.

While any Chicago employment lawyer will tell you that employment discrimination based on a worker's gender became illegal more than four decades ago with the passage of the Equal Pay Act of 1963, the matter is hardly settled.

Women working full time still earn on average 76 cents for every dollar earned by their male counterparts, according to the US Census Bureau. A woman graduating from high school will make $700,000 less than her male counterpart in an average 35-year career, according to Congressional testimony of economist Evelyn F. Murphy (PDF). 

But a bill nearing passage in the Senate may help narrow the gap.

It often has been said that the term "working mother" is an oxymoron because all mothers work, regardless of whether or not they also work outside of the home. It takes a lot of effort to manage a household and a career and sometimes these obligations come into conflict with one another.

Most employers are much more accommodating of their employees' parental responsibilities nowadays, but that wasn't the case for working mother Dena Lockwood, whose legal victory was reported by the Chicago Tribune.

State and federal law does not specifically prohibit employment discrimination against those with family responsibilities, but a Chicago ordinance does. 

After massive layoffs throughout Chicago's transit system, veteran CTA bus driver Sandra Simmons handed out fliers urging coworkers to refuse overtime as an act of worker solidarity, as posted at Chicago Union News. The fliers contained the following message, according to the blog post:

Are you aware of the fact that if you work overtime, you are hurting your brothers and sisters that are being laid off?

Ms. Simmons reportedly was making the claim that overtime and extra shifts represent hours otherwise worked by those who were laid off.

Most people aren't quite as chipper in the gloomy, cold days of winter as they are in the sunshine and warmth of spring. But when it crosses the line into clinical depression, it's known as "seasonal affective disorder" or the apt acronym SAD, as explained on the Mayo Clinic's web site.

But SAD suffers may be happier knowing that a 7th U.S. Circuit Court of Appeals decision last October gave a Chicago-area teacher the green light to pursue an employment discrimination lawsuit against her former employer, as cited in a recent Chicago Tribune article about SAD.

Are You A Contractor In Name Only?

Independent contractors are much cheaper and carry less legal baggage than employees, according to an article in The New York Times about increased government enforcement of worker classification rules. Misclassification of workers, even if the worker okays the arrangement, can result in steep fines for the company.

For example, a home improvement company cited in the article was fined $328,500 by the Illinois Dept. of Labor for misclassifying 18 workers as independent contractors. The workers reportedly were pressured into incorporating themselves as independent business entities.

Workers hired as independent contractors generally lack the benefits and protections of those classified as employees, according to FindLaw, and may want to consult a Chicago employment lawyer if they suspect misclassification.

Crain's Chicago reports on an Illinois Supreme Court ruling involving a union carpenter who was fired for cause and denied workers' compensation benefits. The carpenter, Jeff Urban, ultimately prevailed on appeal to the high court: Interstate Scaffolding Inc. v. The Illinois Workers' Compensation Commission (PDF).

At issue was whether an employer must continue paying workers compensation benefits to an injured employee who was fired for cause. The Illinois Supreme Court unanimously decided that the employer was responsible for paying the benefits; reversing the appeals court decision. 

The company is now required to pay Mr. Urban $1,004.41 per week in temporary total disability (TDD) benefits. 

Jobless Americans are encouraged to seek out work and some are rewarded for their patience and perseverance. But sometimes, accepting a short-term work contract can have the unintended consequence of lowering one's unemployment insurance (UI) benefits upon completion of the contract, The Boston Globe reports.

It's a nationwide problem, the article asserts, and there's probably nothing an Illinois employment lawyer can do to remedy the situation.

To illustrate the problem, the Globe profiled carpenter Gary LaPlante. He was unemployed for about one year before he finally found a three-week contract gig, which he told reporters he happily accepted. Unfortunately his weekly UI benefits were gutted to $178 from the more than $600 he received each week before taking on the short-term contract.

Understanding Your Right To A Meal Period

Workers in Illinois, as in 21 other states, are entitled by state law to a meal period, usually referred to as a "lunch," according to the US Dept. of Labor. But since each state has different guidelines pertaining to meal and break periods, it's important to understand the specifics and consult a Chicago employment lawyer if necessary.

It's also important to understand that there is no federal law requiring employers to offer meal periods, according to FindLaw. So while many employment issues can be handled in federal court, meal period disputes are solely the domain of state law.

May Employers Require Flu Vaccinations?

Thankfully the so-called "swine flu," more accurately classified as H1N1 influenza A, didn't become the worldwide pandemic that many disease experts feared. But the Americans who clamored for the limited supply of H1N1 vaccinations last fall prepared for the worst.

Meanwhile, some employers amended their time-off policies so that workers with flu-like symptoms had more incentive to stay home versus inviting the risk of infecting their coworkers. 

But can your employer legally require you to receive a vaccination? 

In such a tight labor market, workers may feel inclined to look the other way when they believe their employer has violated a federal labor law. But as the following case illustrates, employees often have more leverage than they may think.

The Occupational Safety & Health Administration (OSHA), which is overseen by the US Dept. of Labor, ordered Illinois Central Railroad Co. and Chicago, Central & Pacific Railroad to pay a former employee more than $80,000 for wrongful termination and retaliation, according to an OSHA press release published at 7th Space Interactive.

He claims he was terminated after reporting a work-related injury and filed a retaliation lawsuit in federal court. 

Former emergency medical technician Jonathan Hayes was fired by Mission Care of Illinois, after punching a patient during a Jan. 17, 2008 emergency call, according to the Madison St. Clair Record. As a result of the incident, there is a lawsuit pending.

But it's not the patient who's suing.

Mr. Hayes is suing for wrongful termination against his former employer. Mr. Hayes claims the patient became too combative for him and his partner to handle on their own, so he allegedly called for police assistance. But as stated in the Jan. 15 complaint cited by the article, help didn't arrive quickly enough.

Chicago-based sorority Alpha Kappa Alpha was sued by a former employee who claims she was fired for alerting officials about alleged misappopriation of funds, the Chicago Sun-Times reports. Alpha Kappa Alpha is "the nation's oldest black Greek-letter sorority," according to the article. 

A judge recently dismissed a lawsuit to oust its president, Barbara A. McKinzie, for allegedly "misappropriating millions of dollars" to pay for a wax statue of herself, among other alleged indulgences, according to the article. 

The lawsuit intended to remove Ms. McKinzie from office was filed last June. The lawsuit also claimed the AKA president arranged to have $4,000 paid to her each month upon her leaving the post, against standard policy, according to the Sun-Times.

Dimitrios Biller, a former products liability attorney for Toyota, has sued the embattled carmaker on claims of wrongful termination, defamation and emotional distress, Reuters reports. But his explosive allegations that Toyota routinely concealed evidence of safety problems in its automobiles is making headlines.

Even though this is a federal case, an Illinois employment lawyer would be better able to explain how whistle-blower protections might provide leverage in a wrongful termination suit.

Mr. Biller is barred from going public with confidential documents he says prove Toyota hid evidence in rollover-accident suits based on a temporary ruling, according to a BusinessWeek article.  

The US Court of Appeals for the Seventh Circuit upheld a Chicago restaurant waiter's claim of sexual harassment, Courthouse News Service reports. Plaintiff Paul Turner claims former supervisor Denise "Dixie" Lake put her hand in his pocket and grabbed his penis.

He also sued for retaliation, claiming Ms. Lake unfavorably changed his table assignments and filed false disciplinary charges in addition to the alleged sexual harassment.

"Turner has identified at least five instances of explicit sexual harassment, three of which were aggressively physical," Judge Diane Sykes wrote.

Ms. Lake was upset when Mr. Turner ended their 9-month sexual relationship and made repeated sexual advances; although most of Mr. Turner's other claims were thrown out due to an expired statute of limitations, according to the article.

If you're one of 1,000 city employees who would have been laid off if it weren't for a compromise involving wages and benefits, including furlough days and comp time instead of costly overtime, you have Chicago Federation of Labor (CFL) President Dennis Gannon to thank. Make that former CFL president Dennis Gannon, who decided to hang it up earlier this month, according to the Chicago Sun-Times.

More to the point, Gannon made it clear he will not seek re-election in June after eight years in the top labor position. Gannon told Chicago Tribune reporters that he hopes to still be involved with labor but not in the same role:

"Some people hang on and on. I don't want to die in office. I don't want to end up to not be an effective leader."

The restaurant industry is one of the fastest growing industries in the country but offers meager wages and benefits and poor working conditions, at least according to worker advocacy group Restaurant Opportunities Centers United (or ROC United).

ROC United, which has a chapter in Chicago, recently released a report entitled "Behind the Kitchen Door: The Hidden Cost of Low Road Jobs in Chicagoland's Thriving Restaurant Industry" (PDF). An executive summary of its findings also is available (PDF). The organization released similar reports for Detroit, New Orleans and the state of Maine.  

Given the title, it's clear the organization sees plenty of room for improvement.

According to a lawsuit filed against the YMCA, the Chicago-based organization "has engaged in systemic discrimination" against African-American employees, the Chicago Daily Law Bulletin reported. The two plaintiffs are former YMCA human resources executives; both are African-Americans.

The 51-page complaint, drafted by Illinois employment lawyers Johanna J. Raimond and J. Bryan Wood, alleges that black YMCA employees are under-represented in senior-level positions, are paid less, and and receive fewer promotions than peers of other ethnicities.

Plaintiffs are seeking certification as a class action in their employment discrimination suit, which FindLaw describes is a lawsuit in which numerous individuals claiming similar injuries by a common defendant join as plaintiffs.

Reuters reports that along with the so-called jobs bill being considered by the US Senate, lawmakers must also decide whether or not to continue a patchwork of legislative changes to the nation's unemployment regime,

The Washington Post reports that Congress extended these benefits "in a piecemeal fashion," and that the only way to keep benefits going for nearly 1 million jobless Americans is to pass a more comprehensive piece of legislation by the end of the month. About 12 million Americans are receiving unemployment benefits.

The unemployment rate in the Chicago area was estimated at 10.6 percent in Dec. 2009, which is higher than the national estimate of 10 percent, according to the most recently available data from the Illinois Dept. of Employment Security (PDF).

Effective Jan. 1, the state's Right to Privacy in the Workplace Act prohibits employment discrimination based on employees' use of lawful products outside the workplace. While that may sound a bit vague, the stated purpose of the law is to prevent discrimination against workers who smoke cigarettes, drink alcohol, or engage in otherwise legal activities on their own time (Il. Dept. of Labor).

The Act also places tighter restrictions on Illinois employers who choose to use the federal government's E-Verify system for verifying employment eligibility (USCIS).

As far as lifestyle choices are concerned, bans on smoking or sipping cocktails on the clock are still valid of course. Unfortunately, publicly available information about the Act is limited to the text of the law (linked above, in the first paragraph) and limited commentary on other law blogs. So for a complete analysis and advice, please consult a Chicago employment lawyer.

More than $6 million will be paid out to 235 former Sears, Roebuck & Co. employees who allegedly were fired at the end of their workers' compensation leave period without being provided reasonable accommodations for their disabilities, according to an EEOC press release. 

Workers are entitled to an augmented version of their old job, called a "reasonable accommodation" (i.e. special equipment or a different work schedule) upon return from a work-related injury if they are deemed disabled by the injury, according to the EEOC. The requirement is governed by the Americans with Disabilities Act (ADA), which the EEOC enforces.

As our military servicemen and women prepare for a second or third trip back to Iraq or Afghanistan, the last thing they should have to worry about is whether or not they'll be able to spend quality time with loved ones.

Thankfully, the federal Family Medical Leave Act, or FMLA, provides protected leave for the family members of US service men and women who are called up for active duty (DOL). While it's unpaid leave, it guarantees that employees can take time off to spend with a soon-to-be-deployed family member or care for a family member injured during active duty. 

The state's Equal Pay Act of 2003 (PDF, State of Illinois) is now in line with the federal Lilly Ledbetter Fair Pay Act of 2009 (EEOC) signed into law within the first nine days of President Obama's presidency.

That means if you are a woman, racial minority, or otherwise part of a protected class, and strongly suspect that your pay (which includes wages and benefits) is discriminatory -- but thought perhaps you waited too long to speak up -- you may still have time to contact a Chicago employment lawyer.   

Chicago Bar-Tender reports that truck driver Leon Trimble, with the help of Chicago employment lawyer Timothy Huizenga, claims his former employer fired him for refusing to drive an additional load, even though he had just finished a full shift and told his supervisor he was too tired to drive.    

According to the complaint for his wrongful termination suit, which can be read in its entirety at the Chicago Bar-Tender site, Mr. Trimble worked a full shift of more than eight hours on Oct. 17, 2008. Upon completion of the first shift, he claims his supervisor (Arista Thurman) asked him to pick up another load, which he says would have required him to work an additional five-plus hours.

Most job-seekers send out dozens of resumes and sit through several interviews before landing a job. All kinds of criteria go into the hiring process, but any Illinois employment lawyer will tell you that an applicant's race, gender or other such characteristics legally cannot be considered.

According to FindLaw, such discriminatory pre-employment practices are strictly off-limits.

An employment discrimination lawsuit naming three African-American plaintiffs claims they were not hired by Judge & Dolph because they were black, Chicago Bar-Tender reports. Judge & Dolph acquired Union Beverage Co., which employed the three plaintiffs, but the men claim the new parent company did not hire them because of their race, further claiming that nearly all former Union Beverage employees hired by the new entity are white.

Groups representing labor interests on one side and business interests on the other are sharply divided over a piece of federal legislation that would provide more leverage for workers who wish to unionize. According to GovTrack, it is also referred to as "card check" legislation, the Employee Free Choice Act (EFCA) has broad support from Democrats but staunch opposition from Republicans. 

The Act, known as H.R. 800 on Capitol Hill, would require the National Labor Relations Board to certify a petition to form a union if a simple majority of employees at a given site signs the petition. Once certified, the parties (including labor and management) would have to begin the bargaining process within 10 days.

Currently, those who wish to form or join a union must get 30 percent of the company's employees to sign an authorization card. An election is held, requiring a simple majority, after both sides have an opportunity to campaign for their respective point of view.