Are You Entitled to Your Personnel File?

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Workers often ask me whether they can get their personnel file from their current or former employer. For example, the Pennsylvania Supreme Court recently found that former employees are not entitled to their employee records once he or she stops working for the company. However, Illinois employees are usually entitled to their personnel file.

The Personnel Record Review Act requires Personnel Fileemployers to provide, upon request, “any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action…” 820 ILCS 40/2. The Act applies to most political entities, as well as private businesses that have 5 or more employees. Keep in mind the Act does not simply require the employer to turn over a “file,” but rather defines the specific types of documents, regardless of where they are stored, that must be turned over to the employee.

There are two important consequences if the employer denies an employee’s right to his or her personnel file. First, the employee has a cause of action against the company if the personnel file is not turned over to the employee. 820 ILCS 40/12. The employee must first file a Complaint with the Department of Labor, and can proceed to Illinois Circuit Court if the employer still refuses to turn over the file. An employee who prevails under this cause of action may be entitled to contempt damages, actual damages, costs, a $200 fine, and reasonable attorney’s fees.

The second important consequence of an employer refusing to provide a personnel record is that any employee document not provided in response to a request under the act cannot later be used by the employer in any judicial proceeding. 820 ILCS 40/4.

If you are having difficulty obtaining your personnel file from your current or former employer, or are having any other employment disputes, contact an experienced employment attorney immediately.

Fox Terminates Host for Racial Remark

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Companies have a duty to prevent employees from working in a hostile work environment. On Friday, it appears Fox attempted to do just that. The company fired “The Five” co-host Bob Beckel for a remark he made to an African American employee. Fox believes it acted appropriately by firing Beckel due to the remark. However, lawyers who represent former Fox employees say otherwise.

no seinfeld never finger wag no gif GIF

There have been a number of newly-filed racial discrimination lawsuits against Fox. Lawyers for these plaintiffs say that Fox created a hostile work environment for their clients. Moreover, lawyers allege that not only were there racial comments made in this case, but Beckel also attempted to get the employee to withdraw a subsequent complaint about the incident. The company denies such retaliation.

Title VII of the Civil Rights Act of 1964 prohibits employers from fostering a hostile work environment on claims based on racial harassment. 42 U.S.C. § 2000e-2. In order to establish a hostile work environment claim, the plaintiff must show (1) that he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Smith v. Northeastern Illinois University, 388 F.3d 559, 566 (7th Cir. 2004). An employer is strictly liable for harassment by a supervisor. If the harassment is committed by a co-worker, the plaintiff must show the employer knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004). Thus, in this situation, the determination will partly depend on whether Beckel was the employee’s supervisor, or whether he was merely a co-worker, which requires a higher showing.

Title VII also prohibits retaliation for raising complaints about discrimination. Specifically, it is unlawful for an employer to discriminate against an employee for opposing an unlawful employment practice. 42 U.S.C. § 2000e-3(a). Here, the employee will likely also claim Beckel retaliated against her for raising a complaint of racial discrimination.

The ultimate determination for this employee and those bringing racial discrimination claims against Fox will depend on the specific facts and circumstances of each plaintiff. If you believe you have been discriminated against based on race, or retaliated against for raising a complaint, contact Osborne Employment Law today.

 

BREAKING: 7th Circuit Finds Sexual Orientation Discrimination Illegal

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Big news in the employment law world today. As I have blogged, a three-judge panel on the Seventh Circuit Court of Appeals previously held that sexual orientation discrimination is not discrimination based on sex as contemplated by Title VII of the Civil Rights Act of 1964. The Court reluctantly found sexual orientation discrimination is not prohibited almost purely based on binding Seventh Circuit precedent dating back to 1984. However, the Plaintiff requested the entire Seventh Circuit to rehear the case, which it did in Hively v. Ivy Tech Community College, No. 15-1720 (April 4, 2017). Well, the decision was released yesterday, and the Seventh Circuit held “that discrimination on the basis of sexual orientation is a form of sex discrimination.”

As the Court aptly stated, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” The opinion is especially important because it stands in stark contracts to the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital, which found Title VII does not prohibit sexual orientation discrimination. Generally, when different circuits “split” on an important issue, it becomes much more likely the Supreme Court will address the circuit split.

Keep in mind, although federal law now prohibits sexual orientation discrimination in states encompassing the Seventh Circuit (Illinois, Indiana, and Wisconsin), there may be other laws and ordinances which also prohibit sexual orientation discrimination. In Illinois, for example, the Human Rights Act prohibits sexual orientation discrimination. In Chicago, the Chicago Human Rights Ordinance similarly prohibits sexual orientation discrimination.

Although the Court’s employment decision is a victory for human rights, the Supreme Court will likely get the final say. In the meantime, however, the Seventh Circuit’s ruling will help prevent wrongful terminations based on sexual orientation in the future.

Unemployment Benefits When “You’re Fired”

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Yesterday acting Attorney General Sally Yates announced that she would not defend President Trump’s recent executive order barring citizens of seven Muslim-majority countries from entering the United States for 120 days, and indefinitely suspending the Syrian refugee program. President Trump immediately responded with his favorite phrase: your’e fired. Okay, he may have not actually said the phrase, but he did fire her. Would Ms. Yates be entitled to unemployment benefits if she was an Illinois employee?

You're fired

The purpose of the Unemployment Insurance Act is to alleviate the harsh effects of involuntary employment. Under Illinois law, the employee is ineligible for unemployment benefits if the worker was discharged for misconduct connected with work. 820 ILCS 405/602(A). The most common provision that employees are found to be ineligible under the Act is when the employee commits a deliberate and willful violation of a reasonable rule or policy, provided such violation has harmed the employing unit, other employees, or has been repeated by the individual despite a warning or explicit instruction.

This reasonable rule or policy language was the only definition of misconduct until last year. This is very important because employees are often terminated without violating a clear rule or policy, if the employer even has any. Many employers, particularly smaller companies, do not have clear rules or policies, making it difficult to show the employee ever violated one. Moreover, not only must the employee violate a rule or policy, but the violation must be deliberate and willful, a relatively high standard of culpability. For example, in Washington v. Board of Review, 211 Ill. App. 3d 663 (1991), the Court found an employee falling asleep on the job, despite a policy prohibiting sleeping during work, was not misconduct because the employee did not deliberately or willfully fall asleep.

In former Attorney General Yates’ case, if she were an Illinois employee, it would likely be difficult to show that she violated a specific rule or policy. There would need to be a policy requiring her position to find every action by the President lawful, and she must defend any executive action regardless of the constitutional basis. It is unlikely these rules or policies are in place.

However, beginning in 2016, there are 8 new prongs that allow an employer to claim the employee committed misconduct connected to work. These consist of:

  1. Falsification of an employment application, or any other documentation provided to the company;
  2. Failure to maintain the necessary licenses, registrations, and certifications;
  3. Knowing, repeated violation of the attendance policies;
  4. Damaging the employer’s property through gross negligent conduct;
  5. Refusal to obey an employer’s reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training for the individual required to obey the instruction or the instruction would result in an unsafe act;
  6. Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer’s premises during working hours in violation of the company’s policies;
  7. Reporting to work under the influence of alcohol, or an illegal or non-prescribed prescription drugs; and
  8. Grossly negligent conduct endangering the safety of the individual or coworkers.

As you can tell, these additional provisions make it much easier to find a terminated employee is ineligible for unemployment benefits. Many of these provisions do not require any existing rule or policy for the employee to violate, as opposed to the original misconduct definition. In Ms. Yates’ case, the government could theoretically argue that she refused to obey an employer’s reasonable and lawful instruction (obviously assuming there was an instruction, and such instruction was lawful).

In all likelihood, an attorney as successful as Ms. Yates is unlikely to need to rely on unemployment benefits for any period of time, as she is likely to find new employment quickly. However, for many individuals, the determination whether the employee was terminated for misconduct can have vital consequences, potentially allowing the worker essential benefits until the employee finds new employment.

 

Company Fires Employee for Attending Birth of His Son

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A New Hampshire company, Salerno Protective Services, recently allegedly terminated employee Lamar Austin for missing work. The reason he missed work? He wanted to be with his wife while she went into labor and had their son. Soon after the healthy baby was born, Austin received a not-so-congratulatory text from his employer: “As of now, you are terminated.”

Balloons

Illinois, like New Hampshire, is an at-will employment state. In other words, employers can generally fire employees for any reason or no reason at all – so long as the company does not commit prohibited discrimination, retaliation, or violate some other specific state or federal law. Unfortunately, that means a company may be legally entitled to terminate a worker who has the audacity to attend the birth of his son.

There are a few laws that may turn this situation into a wrongful termination. For example, the Family and Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of leave for the birth of his or her child, and to care for the newborn child. The law allows both the father and mother to take leave. However, keep in mind the FMLA generally only applies if the employer has 50 or more employees (and government agencies), the employee worked for over one year, and the employee worked at least 1250 hours in the preceding year. These requirements exclude many individuals from FMLA protections.

Luckily things seem to be turning out well for Austin. When local companies learned about the circumstances surrounding his termination, many business leaders reached out to him with job offers. A friend also started a GoFundMe Page in his honor, which has exceeded its $10,000 goal.

Hopefully Illinois and other states will enact laws to prohibit these types of terminations. These laws are often not enacted simply because most people think they are not necessary. It is common sense that an employer would not fire an employee simply for wanting to attend the birth of his or her child. People once thought laws prohibiting retaliation for reporting sexual harassment and prohibiting retaliation for grieving a deceased child were unnecessary because it didn’t happen. However, both types of laws have been enacted in Illinois, to combat the unusual employer that denies basic rights and decency to employees.

If you believe a company wrongfully terminated your employment, contact an experienced employment attorney immediately.

 

New Illinois Employment Laws Take Effect

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Although Illinois enacts laws throughout the year, most statutes go into effect on January 1 of the coming year. There are almost 200 new laws passed in 2016 that have gone into effect this week. To bring us into the new year, below are the most important laws that went into effect this week that will impact Illinois employees:

Fireworks

Employee Sick Leave Act (PA 99-0841)

This Act, which I have previously discussed here, is likely the most important piece of legislation passed in 2016 that will benefit the greatest amount of Illinois employees. The law applies to every Illinois employer that provides sick leave to employees. If the company chooses to provide sick leave to employees to care for themselves, then it must also allow the employee to take sick leave to care for the employee’s sick or injured family members. The Act also prohibits employers from retaliating against employees for using sick leave under the act.

Domestic Workers’ Bill of Rights (PA 99-0758)

As I previously blogged about, this law provides workplace protections to “domestic workers,” which include housekeepers, nannies, and caregivers, among other individuals. The law provides domestic workers with many workplace protections to which most other professions are already entitled. This includes minimum wage and overtime, rest breaks, and protections against illegal discrimination.

Right to Privacy in the Workplace Act (PA 99-0610)

The legislature significantly amended the Right to Privacy in the Workplace Act. The Act clarifies that that employers are prohibited from requesting or requiring employees or applicants to authenticate or access a personal online account (such as a facebook or twitter account) in the presence of the employer.

Victims’ Economic Security and Safety Act (PA 99-0765)

The Victims’ Economic Security and Safety Act (VESSA), requires companies to provide employees leave if he or she has been a victim of domestic or sexual violence, or has a family member who is a victim. The previous version of the law only provided leave to employees who worked for companies which employed at least 15 or more employees. However, in 2016, the law was amended to allow leave for individuals regardless of the amount of employees.

The length of the leave period is dependent on the amount of the company’s employees. If the company employs more than 50 employees, the individual is entitled to 12 workweeks of leave during any 12-month period. If the company employs between 15 and 50 employees, the individual is entitled to 8 workweeks. If the company employs between 1 and 14 employees, the individual is entitled to 4 workweeks of unpaid leave.

Illinois Freedom to Work Act (PA 99-0860)

I have extensively blogged about Jimmy John’s inappropriate and unnecessary non-competes with low-wage employees. After several lawsuits against the companies, bad press, and settlements, Jimmy John’s is no longer able to use the impermissible non-competes on low-level employees. In addition, Illinois passed the Illinois Freedom to Work Act, which prohibits such non-compete agreements with individuals earning $13 or less.

These are the most important new Illinois employment laws affecting workers. I will continue to monitor and update you on important case law and legislative updates that affect Illinois workers, including the new and hotly disputed federal overtime rule. If you think any Illinois workplace laws have been violated, contact an attorney immediately.

Illinois Reaches Settlement with Jimmy John’s

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Jimmy John’s recently required its Illinois employees to sign highly restrictive non-compete agreements. These agreements would effectively prevent the individuals from working at most food-related companies in the nation. The company’s actions were so egregious Illinois passed a law prohibiting employers from using non-compete agreements for employees earning $13 or less per hour.

Illinois’ Attorney General, Lisa Madigan, also filed suit against the Corporation for unfair labor practices. In essence, the lawsuit claims the company forced its employees to sign the non-compete agreements, knowing they were unenforceable, in an attempt to chill any effort by employees to consider leaving for another employer.

This week, the Illinois Attorney General and Jimmy John’s reached a settlement in the case. The company settled the case with Illinois for $100,000, and further agreed to:

  • notify all current and former employees the agreements are non-enforceable;
  • rescind any non-competes used based on the unenforceable agreement;
  • remove all non-compete from the new-hire process; and
  • comply with Illinois law regarding non-competes in the future.

Unfortunately, instead of using non-compete agreements to protect a legitimate business interest, companies are increasingly using the documents to simply dissuade employees from working someone else. Courts are clear that simply using a non-compete to discourage an employee from quitting or working for a competitor are not in-and-of-themselves legitimate business interests for purposes of non-compete agreements. If you have signed a covenant not to compete or other business agreement, it is highly advisable to speak with an attorney to learn your legal rights.

 

BREAKING: Federal Judge Blocks New Overtime Rule

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I have previously blogged about the new Department of Labor (DOL) Overtime Rule that is set to go into effect on December 1, 2016. Put simply, the rule will require many employees paid a salary of less than $47,476 to be paid overtime at a rate of time-and-one-half for all hours worked over 40 in a given week. Currently, many employees who are paid a salary of at least $23,660, and meet other job duty requirements, are exempt from overtime pay.

On Tuesday, Judge Amos L. Mazzant III, a United States District Court Judge for the Eastern District of Texas, issued a preliminary injunction preventing the DOL’s rule from going into effect. The Judge partly found the rule cannot take effect because the increased salary basis amount of $47,476 was too high. The Court found the DOL must base the overtime exemption requirements on numerous factors, such as meeting certain job duties (see here). However, by increasing the salary basis minimum to the amount that it did, the DOL changed the overtime exemption test to a “de facto salary-only test.” Keep in mind, Judge Mazzant only granted a preliminary injunction, which may change when it comes time for the Court to make a final determination on all the evidence produced during discovery and trial.

As of this second, the overtime rule will not go into effect December 1, 2016, and the current overtime exemption tests remain in place. This includes the $23,660 salary basis requirement for certain types of employees. The Department of Labor is almost certain to appeal the Court’s order. This firm will keep everyone up-to-date on any appeals, decisions, or legislation affecting the ability for workers to earn overtime compensation at their jobs.

Illinois Sick Leave Rights

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An employee was recently terminated from the Eric County Sheriff’s Department (in the state of New York) for allegedly abusing her sick leave time. The employee was caring for her husband who has fourth-stage esophageal cancer. She previously banked around 700 hours of sick time, but already went through those hours. She also says that she provided her employer doctor’s notes stating she has severe fatigue, headaches, and depression. Her superiors at the Sheriff’s Department, who just unveiled a pink-wrapped patrol car to support breast cancer awareness, terminated her employment partly on the basis of abusing sick leave. Although the facts in this case are disputed (and may be litigated in the future), this brings up the question of what rights Illinois employees have when it comes to sick leave.

Sick

Illinois Sick Leave Law

There are no federal or Illinois state laws that require employers of any size to provide employees sick leave. However, once employers offer the leave, workers may be entitled to certain rights and benefits under Illinois law. For example, a company that promises leave to employees, either through a contract, handbook, or other policy, but fails to provide it may be liable for a breach of contract or Illinois Wage Payment and Collection Act claim. See Grant v. Board of Education, 282 Ill. App. 3d 1011 (1996).

In addition, the legislature recently passed the Illinois Employee Sick Leave Act, which goes into effect January 1, 2017. The law requires employers who already offer sick leave to allow employees to use the leave to care for a sick or injured family member. Employers cannot retaliate against an employee for using or attempting to use leave under the act, or opposing an employer that does not provide leave pursuant to the act.

There are certain municipalities within Illinois that do require employers to offer sick leave. For example, the Chicago Paid Sick Leave Ordinance, passed earlier this year, requires Chicago employers to provide eligible employees up to 40 hours of paid sick leave every 12 months of employment. Individuals must perform a minimum of 2 hours of work for the employer in Chicago within a 2-week period, and work a minimum of 80 hours in any 120-day period. The ordinance applies to most employers, but does not apply to those subject to a bona fide collective bargaining agreement.

Laws Related to Sick Employees

Although most jurisdictions do not require employers to offer sick leave to employees, other laws may apply in a situation where an employee seeks leave. For example, if an employee requests sick leave for a serious health condition, the Family and Medical Leave Act (FMLA) may require leave, even if the employee may not be able to take the company’s designated sick leave. An employee may also have claims for disability discrimination if the employer offers leave differently based on whether an employee has a qualifying disability.

Court Finds Sexual Orientation Discrimination Prohibited

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In August, I blogged how most federal courts have found employment discrimination on the basis of sexual orientation (LGBT) is not “discrimination based on sex” as contemplated by Title VII of the Civil Rights Act of 1964. However, the tide may slowly be turning.

Tide Turning

In my previous blog entry, I noted a three-judge panel of the Seventh Circuit Court of Appeals recently affirmed that Title VII does not prohibit sexual orientation discrimination, despite the Equal Employment Opportunity Commission (EEOC) concluding it does. The Court relied on Seventh Circuit precedent dating back to 1984 holding Title VII does not prohibit sexual orientation discrimination. Plaintiff Hively moved to have the decision reconsidered by the entire Seventh Circuit Court of Appeals (rather than just a three-judge panel). Last month, the Seventh Circuit granted the Plaintiff’s petition, and vacated the three-judge panel’s decision until the Court decides the case en banc.

In Hively, the Seventh Circuit partly found that it will leave expanding Title VII’s protections to district courts, “which are the front line experimenters in the laboratories of difficult legal questions…” In fact, a district court in Pennsylvania recently confronted this exact difficult legal question, and found “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation.” It will be interesting to see how the en banc Seventh Circuit treats the District Court’s groundbreaking determination, which is consistent with the EEOC’s position on the issue.