Dana Perminas

GEICO Insurance Investigators Not Exempt from FLSA

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On December 23, 2015, the 4th Circuit, in Calderon v. GEICO, ruled that GEICO insurance investigators are not subject to the administrative exemption of the FLSA and therefore, are entitled to overtime.   The plaintiff investigators follow company procedures and spend 90% of their time investigating potential fraudulent insurance claims.  GEICO has been classifying its investigators as exempt for a long time.

The administrative exemption applies to those who: (1) are paid, on a salary basis, in an amount not less than $455 per week; (2) “whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers;” and (3) whose primary duty involves the exercise of discretion and independent judgment. 29 C.F.R. §541.200(a).

The district court found that GEICO could not establish that the insurance investigators primary duties involved independent judgment and discretion, therefore, summary judgment was granted in favor of the plaintiffs.  The 4th Circuit upheld the decision for plaintiffs but relied upon the second element of the exemption – whether the work was directly related to the management or general business operations – find that their primary duty was “the investigation of suspected fraud, including reporting their findings.”  The court stated “[t]hus, in the end, the critical focus regarding this element remains whether an employee’s duties involve “‘the running of a business,’” Bratt v. County of Los Angeles, 912 F.2d 1066, 1070 (9th Cir. 1990), as opposed to the mere “‘day-to-day carrying out of [the business’s] affairs,’” Desmond I, 564 F.3d at 694 (citing Bratt,912 F.2d at 1070).

The court further stated that “[r]egardless of how [i]nvestigators’ work product is used or who the Investigators are assisting, whether their work is directly related to management policies or general business operations depends on what their primary duty consists of… the primary duty of the Investigators… is not analogous to the work in the “functional areas” that the regulations identify as exempt. 29 C.F.R. § 541.201(b).”  Conversely, the court found that the primary duties were directly analogous to the work the regulations identify as not satisfying the directly relatied element. See 29 C.F.R. §§ 541.3(b)(1), 541.203(j).   Admitting that the issue was very close, the court held GEICO could not establish that the plaintiffs’ primary duties were “plainly and unmistakably” directly related to the company’s management or general business operations.

This case is yet another reminder of the importance of properly classifying your employees pursuant to the FLSA.

For more information on the FLSA or any further employment related matters, please contact Dana Perminas, at 312-334-3474 or dperminas@messerstrickler.com for more information.

PAID SICK LEAVE POLICIES SPREADING AROUND THE U.S.

As a follow up to prior blogs, I wanted to provide a list of those states and cities that have enacted legislation compelling employers to provide their employees with paid sick leave.   We had previously discussed the new laws in California and Philadelphia.  Now Pittsburgh is following suit, and so have other states and cities. Under the new Pittsburgh law, effective January 11, 2016, all full-time and part-time employees working in the city of Pittsburgh, excluding independent contractors, state and federal employees, any members of construction unions subject to collective bargaining agreements, and seasonal employees notified in writing when hired that they will not work more more than 16 weeks during the year, will accrue one hour of paid sick leave for every 35 hours worked (including overtime hours).

Pittsburgh employers with 15 or more employees must permit employees to accrue 40 hours of paid sick leave per year while employers with less than 15 must permit employees to accrue 24 hours of paid sick leave per year.  Those employees must be allowed to carry over accrued sick leave from year to year but employers need not allow them to use more than 40 hours (or 24 for smaller employers) of that paid sick leave in a given year.  In lieu of the carryover, employers can choose to provide all of the required sick leave at the beginning of the year, to avoid that carryover of unused leave.   For those smaller employers, they are only required to provide unpaid sick leave (accrued at the same rate state above) for the first year after the law is enacted.  The Pittsburgh law also has stated terms and regulationsfor permitted use and increments of using the leave, notice, documentation and posting requirements, recordkeeping and prohibited conduct, to name a few.

As far as the rest of the country, California, Connecticut, and Massachusetts are the only states that have enacted legislation to allow statewide paid sick leave.  It is expected that other states and cities will attempt to follow the trend– specifically Oregon, who recently adopted a paid sick leave and safe[1] leave law that will be effective next year.  Tacoma, WA and Montgomery County, MD (the first county to do so) also passed sick and safe leave laws also to be effective in 2016.  In some jurisdictions, such as San Diego, proposed laws such as these have been met with opposition.

As far as cities go, Eugene, OR, Newark, Jersey City, Irvington, Passaic, East Orange, Paterson, Trenton, Montclair, Bloomfield, New York City, Oakland, Philadelphia, Pittsburgh (discussed above, effective 1/1/16), Portland, OR, San Francisco, Seattle, and Washington, D.C., already have laws on the books that allow workers to earn paid sick leave, or in a few of those cities, also allows workers to earn paid safe days as well.

For more detailed information on the new Pittsburgh law, or any employer vacation/sick/PTO policies around the country, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

[1] Safe Day laws involve allowing an employee paid days off in the event care or treatment is needed for domestic violence, sexual assault or stalking.

 

Related Articles:

EFFECTIVE MAY 13, 2015: UPDATE TO PHILADELPHIA SICK LEAVE REQUIREMENTS

EFFECTIVE JULY 1, 2015: UPDATE TO CALIFORNIA SICK LEAVE REQUIREMENTS

Second Employment related FCRA Claim filed against AMAZON.COM

A second class action has been filed against Amazon.com in the U.S. District Court for the District of New Jersey alleging that Amazon violated the Fair Credit Reporting Act by failing to warn an applicant a negative reports it received and in turn, failing to allow the applicant an opportunity to clarify or fix what he deemed were errors on the report.   Plaintiff also alleges Amazon failed to provide him with a copy of that report or a list of his rights under the FCRA as required.  According to Plaintiff’s Complaint, Amazon allegedly offered him a position but later withdrew the offer after receiving negative information in a background check from a third party background screener.

The New Jersey Plaintiff seeks to represent a class of those people (employees or job applicants) at Amazon who did not receive a copy of their reports or correspondence explaining that the report would not be provided within 2 to five years from the date of filing.  As a best practice, employers should be aware of the requirements imposed by the FCRA and provide all applicable notices to employees or prospective employees as required.

For more information on the FCRA and its application in the employment law field, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com.

33% Attorney’s Fee Award Reduced to Lodestar Calculation in FLSA Settlement

Marshall v. Deutsche Post DHL, decided September 21, 2015 involved a collective action against DHL and DHL Express (USA) Inc. The plaintiffs represented a class of DHL agents working at airports in New York, Miami and Los Angeles who were “undercompensated through defendants’ alleged unlawful rounding of time, automatic deductions for meals, and requests that employees work off-the-clock.” Plaintiffs, through class counsel, obtained a settlement of $1,500,000 for the 242 class members involved. In approving the settlement, the district court stated that it had no issues with the settlement amount for the class members, but took issue with the calculation of class counsel’s attorney’s fees pursuant to that settlement. Although class counsel appeared to have billed a total of 1,325 hours on the case for a total lodestar figure of $591,571.25, class counsel requested $500,000 in fees, or one third of the settlement amount, and sought to be reimbursed for $33,371.39 for costs. The magistrate judge approved the proposed settlement and no class member or other interested party made any objection. Fast forward to the settlement approval by the district court – as stated above, the court took no issue with the settlement amount as to the class stating “the settlement is substantively fair and adequate and therefore is approved.” The court next evaluated class counsels’ request for an award equal to 1/3 of the total settlement amount. The court stated a “court may calculate a reasonable attorneys’ fee either by determining the so-called “lodestar” amount or by awarding a percentage of the settlement. “See McDaniel v. Cnty. Of Schenectady, 595 F.3d 411, 417 (2d Cir. 2010). The court also acknowledged that “the trend in this Circuit is toward the percentage method,” but either approach is appropriate. McDaniel, 595 F.3d at 417 (quoting Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121(2d Cir. 2005). Even so, the court, citing to McDaniel, 595 F.3d at 417, stated “the percentage-of-the fund method”…“create[s] perverse incentives of its own, potentially encouraging counsel to settle a case prematurely once their opportunity costs begin to rise.”

The district court ultimately disagreed with the magistrate’s finding that the 1/3 award was reasonable stating that “there is reason to be wary of much of the case law awarding attorney’s fees in FLSA cases in this circuit” citing to Fujiwara v. Sushi Yasuda Ltd., 58 F.Supp. 3d 424, 436 (S.D.N.Y. 2014). Therefore, the district court followed several other New York federal district judges partial to Fujiwara and applied the lodestar method but refused to apply a multiplier. In doing so, the court reduced the award to $370,236.50, approximately 25 percent of the total settlement, stating “[w]hile counsel urge the use of a lodestar multiplier, the various considerations that might justify a multiplier have already been factored into the determination of counsel’s reasonable hourly rate. I decline to add a multiplier to the fee award.” See Goldberger v. Integrated Res., Inc., 209 F.3d 43, 51-57 (2d Cir. 2000).

The Marshall decision could present a concern for mid-size or larger firms, who generally bill at much higher rates, who are considering taking on the risk of employment common fund class or collective actions.

For more information on the FLSA, class or collective actions or any other employment law issue, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com.

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Employment related FCRA Claim against AMAZON

A class action filed against Amazon.com in a circuit court in Tampa, Florida alleges that Amazon wrongfully used consumer credit reports in hiring, firing and even for shift assignments for employees and prospective employees in the state of Florida.

The lead Plaintiff alleged that Amazon obtained his credit report without his permission and did not give him the ability to refute or clarify information in the report before it turned him down for a job in one of Amazon’s Florida warehouses.  According to the Plaintiff, by doing so, Amazon violated his rights under the Fair Credit Reporting Act (“the FCRA”) and manifests a pattern of systematic violations of other employees’ and job applicants’ rights under the FCRA.  Plaintiff also alleged that Amazon’s background check disclosure form, which contains a liability release, also violates the FCRA.

Plaintiff alleged that he was “given no pre-adverse notice whatsoever of the information contained in the consumer report upon which defendant based its decision" and that Amazon.com "did not provide plaintiff with a copy of the consumer report that it relied upon prior to defendant's adverse employment action.  As a result, in violation of the FCRA, plaintiff was deprived of any opportunity to review the information in the report and discuss it with defendant before he was denied employment."

As a best practice, employers should be aware of the requirements imposed by the FCRA and provide all applicable notices to employees or prospective employees as required.

For more information on the FCRA and its application in the employment law field, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

CLASS ACTION STATUS GRANTED AGAINST UBER TECHNOLOGIES

Judge Edward Chen of the Northern District Court of California recently certified a class action suit against Uber Technologies, Inc. which claims the service treated its drivers like employees rather than independent contractors. The plaintiffs in this case believe that since Uber controls much of the drivers’ experiences (i.e. setting fares, deciding when and why they can be terminated, etc.), drivers should be classified as employees and therefore be eligible for expense reimbursements for car repairs, tips, and insurance. The class action will not apply to drivers that waived their right to litigate, certain drivers who work for independent transportation companies and drivers outside the state of California.  If a ruling limiting the class to those employed in the state of California is successfully appealed, however, the class action could be applicable to drivers around the country.

For more information regarding the class action against Uber or employment law generally, contact Joseph Messer at jmesser@messerstrickler.com or (312) 334-3440.

Independent Contractor Classification Narrowed by Department of Labor

On July 15, 2015, the Department of Labor (“DOL”) issued new guidance which would allow more workers to qualify for overtime pay.  In the Administrator’s Interpretation No. 2015-1, the DOL is narrowing the definition of an independent contractor taking the position that most work should be performed by employees and independent contractors should be used sparingly. Under this new guidance, the department considers six factors when determining a worker’s status:

■ The extent to which the work performed is an integral part of the employer’s business

■ The worker’s opportunity for profit or loss depending on his or managerial skill

■ The extent of the relative investments of the employer and the worker

■ Whether the work performed requires special skills and initiative

■ The permanency of the relationship

■ The degree of control exercised or retained by the employer

These six factors will be examined in relation to one another and no single factor can determine into which category a worker falls. Additionally, hiring business entities and independent contractors will not consequently protect an employer from liability under the Fair Labor Standards Act.

Finally, the DOL reinforces that the type and scope of work being performed should be reviewed before an independent contractor is hired. When it is appropriate to hire an independent contractor, ensure the correct indemnification provisions are in place to protect a company from any wage and hour claims that may arise. It is an employer’s duty to audit the status of all independent contractors in the event their duties or the work being performed becomes more akin to that of an employee as opposed to an independent contractor.

For more information on the new DOL guidance or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

EFFECTIVE MAY 13, 2015: UPDATE TO PHILADELPHIA SICK LEAVE REQUIREMENTS

Under the new Philadelphia law, employers with 10 or more employees will be required to provide up to one hour of paid sick leave for every 40 hours worked (including overtime hours) by an employee in the city.  Employees who are salaried exempt employees accrue sick time based on the employee's normal work week or a 40-hour work week, whichever is less.  Employees may accrue up to 40 hours of sick leave in a calendar year (unless the employer allows more).  Employers with fewer than 10 employees will be required to provide unpaid sick leave on the same terms.  Employers must update their employee handbooks and provide notification to employees of these new provisions immediately as this was required to be done by May 13, 2015. At its discretion, an employer may loan sick leave to an employee in advance of accrual.  The date on which actual accrual of paid sick leave begins should be measured from May 13, 2015, but the time period for an employee to use accrued paid sick leave is measured by the actual date of employment – an employee must be employed for at least 90 days by the employer before being able to use any accrued paid sick leave.

Like the California law, employers must allow employees to carry over all accrued paid sick leave to the next year, without limit, if the employer does not provide all 40 hours of paid sick leave at the beginning of each year.  Although the carry-over has no limitations, an employer may limit use of sick leave in any single calendar year to 40 hours.

Employers must allow employees to use the 40 hours of paid sick leave on either an oral or written request for their own or for a family member’s need.  Employers are not required to pay an employee for accrued, but unused, paid sick leave at the end of employment but keep in mind an employer will likely be required to pay out any accrued but unused vacation or PTO time pursuant to Pennsylvania state law.

If the employer’s current policy allows for paid sick leave of at least 40 hours, or 5 days, in a year, you do not need to change the policy, but must follow the record keeping and notification requirements and be used for the same purposes and under the same conditions as paid sick leave under the new law.

Employers must provide notice to employees of their entitlement to paid sick leave, including the amount, the terms under which leave can be used, the guarantee against retaliation, and the right to file a complaint regarding violations of the ordinance. Notice can be (a) by written notice in English or in any other languages spoken by five percent of the employees, or (b) by displaying a poster prepared by the city.

Employers must also maintain records documenting the hours worked, sick leave used, and payments made to employees for sick time. The failure to maintain or retain adequate records creates a rebuttable presumption against the employer, absent clear and convincing evidence otherwise. In addition, an employer must make these records available to the city enforcement agency upon request.

Under the new law, employers cannot:

■ Require that an employee find a replacement worker to cover the hours during which the employee is absent as a condition of utilizing paid sick leave.

■ Deny the right to use accrued sick leave or discharge, or take any negative employment action including threats to discharge, demotions, suspensions, or discrimination against any employee for using accrued sick time, attempting to use accrued sick time, filing a complaint with the agency or alleging a violation, cooperating in an investigation or prosecution of an alleged violation, or opposing any policy or practice that is prohibited.

For more information on the new Philadelphia law, employer vacation/sick/PTO policies or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

EFFECTIVE JULY 1, 2015: UPDATE TO CALIFORNIA SICK LEAVE REQUIREMENTS

Effective July 1, 2015, employers in California will be required to provide all employees (full-time, part-time and temporary) who, on or after July 1, 2015, work in California for 30 or more days within a year from the beginning of employment, paid sick leave. Employees will earn at least one hour of paid leave for every 30 hours worked, or in other words 3 days of paid sick leave per year.  Employees can use the leave for themselves or a family member.  “Family member” is defined by the law to include children, parents, grandparents, grandchildren, siblings, spouse and registered domestic partner. Accrual begins on the first day of employment or July 1, 2015, whichever is later.  An employer has two options in terms of accrual and provision of leave; 1) If the employer’s policy is to provide sick leave only as it accrues, employers must allow the employee to carry over any unused sick leave to the next year if unused.  Employer can limit accrual to a total of 6 days.  Employers can still (regardless of their policy when sick leave is awarded) limit use of paid sick leave to 3 days in a year.; or 2) If the employer provides the sick leave upfront at the beginning of the year before it accrues, the employer does not have to allow the employee to carry over unused time to the next year.

If the employer’s policy already provides for sick leave or contains a PTO policy that provides for an amount of paid leave (no less than 3 days) that may be used for the same purposes and under the same conditions (including accrual, carry over and use requirements) of the new law, an employer need not provide additional paid sick leave.

Employees must be paid at their standard rate of pay for sick leave used.  If the employee earns commissions or bonuses, those items must be factored into the sick leave payment.

There are several things employers must do to comply with the new law including:

1) Separately track sick leave accrual and use.  This must be on a pay stub or a document issued the same day as a paycheck.  Also, employers must keep records showing how many hours have been earned and used for a period of three years.

2) Display poster on paid sick leave where employees can easily read it. -

3) Provide written notice to employees with sick leave rights at the time of hire.  A new form of the notice required by Labor Code Section 2810.5 (the “Wage Theft Protection Act”) needs to be given to employees, advising them of their rights under the new law.

As a best practice, all employers should allow eligible employees to use accrued paid sick leave upon reasonable request.  Also, employers need not do not pay an employee at termination for sick leave pay that was not used, but keep in mind if an employer’s policy grants vacation time, or PTO, that accrued time most likely will be subject to payout under California law.

For more information on the new California law, employer vacation/sick/PTO policies or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

Message Left for Payroll Department Not a “Communication”

In an Order entered on January 16, 2015, Judge Victoria A. Roberts of the United States District Court for the Eastern District of Michigan issued a favorable ruling for debt collectors. In the case of William Brown III v. Van Ru Credit Corporation, the Plaintiff alleged the Defendant violated the Federal Debt Collection Practices Act (“FDCPA”) as well as two state laws by leaving a single telephone message at Brown’s place of business. The alleged violation occurred on April 14, 2014 when a representative at Van Ru called and left the following message in the general voicemail box at Brown’s business.

“Good morning, my name is Kay and I’m calling from Van Ru Credit

Corporation. If someone from the payroll department can please

return my phone call my phone number is (877) 419-**** and the

reference number is *****488; again my telephone number is

(877) 419-5627 and reference number is *****488.”

This message was heard by an employee, who was aware of Van Ru’s status as a debt collector. For this reason, Brown argued Van Ru violated 15 U.S.C. §1692c(b) declaring they communicated with an unauthorized third party about a debt owed by Brown.

However, this message does not constitute a communication. As defined by the FDCPA, a communication is “the conveying of information regarding a debt directly or indirectly to any person through any medium.” Since Van Ru only sought to contact the business’s payroll department and did not directly reference a debt, they did not violate the FDCPA.  This decision is a great victory for the collection industry, especially those agencies collecting federal student loan debt.

Judge Roberts granted Defendant’s Motion for Judgment on the Pleadings while denying Plaintiff’s Motion to File his First Amended Complaint. As such, Plaintiff’s FDCPA claims were dismissed with prejudice and the Court declined to retain jurisdiction over the state claims.

For more information on the decision of this case or any other consumer law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com.

View the Order Here: Order in favor of Van Ru

 

Dear EEOC: Not All Attorneys Are The Same

On September 29, 2014 the Second Circuit Court of Appeals, in EEOC v Port Authority of New York and New Jersey, September 29, 2014, Livingston, D) held that the EEOC failed to allege sufficient facts to state a plausible claim that female and male attorneys at the Port Authority performed “equal work” despite receiving unequal pay as the EEOC could not allege any facts supporting a comparison between the attorneys’ actual job duties, thereby precluding a reasonable inference that the attorneys performed “equal work.”

Congress passed the EPA in 1963 “to legislate out of existence a long‐held, but outmoded societal view that a man should be paid more than a woman for the same work.”  Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).  To prove a violation of the EPA, a plaintiff must demonstrate that “[(1)] the employer pays different wages to employees of the opposite sex; [(2)] the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and [(3)] the jobs are performed under similar working conditions.”  Belfi, 191 F.3d at 135.

To satisfy this standard, a plaintiff must establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.  

At the pleading stage, a plausible EPA claim must include “sufficient factual matter, accepted as true” to permit “the reasonable inference” that the relevant employees’ job content was “substantially equal.”    Such factual allegations are necessary to provide “fair notice [to the defendant] of the basis for [the plaintiff’s] claims.” Yet, despite a three‐year investigation conducted with the Port Authority’s cooperation, the EEOC’s complaint and incorporated interrogatory responses relied entirely on broad generalizations drawn from job titles and divisions, and supplemented only by the unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support its “substantially equal” work claim.  As such, the EEOC’s complaint was dismissed.

The EEOC’s argument that “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill’ was rejected by the Court which stated that “accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model.  Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”

Unfortunately for the Port Authority, even though they received the result they were seeking in this case, they had been cooperating with and providing the required information to the EEOC since 2007, when this matter began, stemming from a discrimination charge.  The EEOC then conducted a three year investigation into the EPA and determined in 2010 that the Port Authority violated the law.  Luckily for the Port Authority, the District Court and the 2nd Circuit disagreed and held the EEOC did not meet its burden proving any violation of the EPA occurred.   

For more information on the EEOC or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

NO ADVANCE NOTIFICATIONS REQUIREMENTS FOR EMPLOYEES SEEKING TREATMENT FOLLOWING WORKPLACE INJURY

On September 24, 2014 the Northern District of Illinois, in Stevenson v. FedEx Ground Package System, Inc., No. 13 C 138 (N.D. Illinois 2014, Judge John J. Tharp, Jr.), held that FedEx’s policy that employees notify the company prior to seeking medical treatment for a workplace injury interferes with the right of employees to seek medical treatment for those injuries. 

Under Illinois law, it is unlawful for an employer to terminate an employee for exercising a right guaranteed by the Illinois Workers’ Compensation Act, 820 ILCS 305(“IWCA”).  See 820 ILCS 305/4(h) (prohibiting employers from interfering with an employee’s exercise of IWCA rights or from discharging employees because of the exercise of IWCA rights).

FedEx company policy required immediate reporting of workplace injuries whether they required only minor first aid or professional medical treatment.   FedEx policy also required employees who wanted to seek professional medical treatment for a workplace injury to first attempt to provide advance notice to management. Under the policy, failure to provide notification to management before seeking professional medical care could subject the employee to termination.

Stevenson reported to supervisors that he was suffering from a sore back.  FedEx generated an injury report and placed Stevenson on light duty to accommodate. He did not request or seek medical treatment immediately at that time.  After working light duty on January 7, 8, 10, 11, and 12, Stevenson sought medical treatment for his back on January 13.  The physician’s assistant provided him with a “Certificate to Return to Work,” which stated: “Please keep patient on light duty/off truck work until he can have a functional capacity eval done with physical therapy to see exactly what his limitations are.” Stevenson began his next shift.  At the end of that shift, he presented the note from the physician’s assistant, notifying FedEx that he had already sought and received medical care for the January 6 incident.   He was then terminated for violation of the company policy requiring advance notice before seeking medical treatment for a work place injury. 

Stevenson then filed suit, alleging that his termination constituted retaliation for exercising a right guaranteed by the IWCA. FedEx filed for summary judgment and Stevenson filed a cross motion seeking judgment on the pleadings.

For IWCA claims alleging retaliatory the “employee must prove (1) his status as an employee of the defendant; (2) his exercise of a right granted by IWCA, and (3) a causal relationship between his discharge and the exercise of that right.” Here, the parties agreed on the first and third elements but did not agree the actions were protected by the IWCA.  Stevenson’s argument rested on whether the IWCA prohibits employers from interfering with an “employee’s attempt to exercise rights provided in the statute.”

The court held that the IWCA does not contain any language to suggest that employers may impose “minor, or even de minimis, burdens on an employee’s right to seek medical treatment… the unqualified language of the statute states plainly that employers may not interfere “in any manner whatsoever” with an employee’s exercise of his rights.” See, also 820 ILCS 305/4(h).  The court further stated that “by requiring notification before an employee seeks medical treatment, the company policy acts as an obstacle to an employee’s ability to seek medical care ‘at any time.’” 820 ILCS 305/8(a).  Firing employees “who do not comply with additional restrictions runs afoul of the statutory provision forbidding the discharge of employees for exercising these rights.” See 820 ILCS 305/4(h).

This case is a good example of Illinois’ restrictions on employment practices of employers when they are deemed to infringe on employees’ rights under the many applicable employment law statutes in Illinois.  For more information on the IWCA or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

Employment Law Tip for Employers #5: Telecommuting

In terms of reasonable accommodations pursuant to the Americans with Disabilities Act, telecommuting has been a national debate for years.  Employers are questioning whether telecommuting is a reasonable accommodation for employees and whether it should be permitted as an accommodation for those with disabilities.  Recently, an opinion came down from the Sixth Circuit Court reversing the decision of the District Court in EEOC v. Ford Motor Company.

The Equal Employment Opportunity Commission (“EEOC”) filed a complaint against Ford Motor Company in 2011 alleging that Ford refused to accommodate an employee, Jane Harris, who was suffering from irritable bowel syndrome.  Ms. Harris requested an accommodation to work from home due to her illness. Ford refused this request claiming that Ms. Harris’ job required in-person communication and if she could not be physically present she was not otherwise qualified for the job.  Consequently, Ms. Harris sued Ford and the EEOC pursued the case on her behalf.

In 2012, the Eastern District of Michigan ruled that Ms. Harris indeed could not perform the essential functions for her job with or without the accommodation of working from home. The Court stated that working from home is only available for an “exceptional” class of jobs that do not require “the kind of teamwork, personal interaction, and supervision that simply cannot be has in a home office situation.” 

This decision went against the EEOC guidelines on reasonable accommodations under the Americans with Disabilities Act (“ADA”), which states  that allowing employees to work from home is required since the term “reasonable accommodation” may include among other requirements “job restructuring, part-time modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

The EEOC appealed the Court’s decision and last month the Sixth Circuit Court released the opinion reversing the 2012 grant of summary judgment on the failure to accommodate and retaliation claims.  This decision has direct implications for employers, making it wise to reconsider their telecommuting policies and accommodations for employees with disabilities.

There are certain steps that employers can take to decrease the possibility of lawsuits for violation of the ADA by not accommodating employees with disabilities:

-          Have Detailed Job Descriptions in Place.  Drafting  detailed job descriptions will help identify what job functions are essential, which might help both employees and employers to discern if the request of accommodation is reasonable or not.  Also, this will help during litigation if an employee files a claim.

-          Document Employee Requests and Employer’s Response.  If an employee requests an accommodation, document these requests as well as all attempts made by an employer to accommodate an employee.  This will also help during the litigation process.

-          Document Policies.  An employer should make sure that all policies are documented and read by employees.  It is also essential to monitor that these policies are implemented.  If one employee is allowed to work from home and another is not, this might give rise to a lawsuit.

-          Understand What Employee Is Requesting.  Make sure to understand the employee’s request before refusing it.  Misinterpreting a request for a reasonable accommodation could lead to a lawsuit as well.

For more information on telecommuting, the ADA and other employment matters, you may contact Dana Perminas of Messer Strickler, Ltd. at (312) 334-3474 or at dperminas@messerstrickler.com.

Employment Law Tip for Illinois Employers #4: Disaster Service Leave with Pay

In the light of the recent tornadoes, high winds and hail spawned by the storm system that's killed 31 people in the past week, we thought it would be helpful to inform Illinois employers regarding the little known laws in this state that allow employees disaster service leave with pay.  According to Section 303.175 of the Illinois Administrative Code, any employee, except those employed on a temporary, emergency or per diem status, who is either a certified disaster service volunteer of the American Red Cross, a volunteer for assignment to the Illinois Emergency Management Agency in accordance with the Illinois Emergency Management Agency Act [20 ILCS 3305] or the Emergency Management Assistance Compact Act [45 ILCS 151]  may be granted leave with pay for up to 20 working days in any 12-month period for disasters within Illinois.  The leave may be granted upon request of the American Red Cross and approval of the employee's agency.  Disasters must be disasters designated at a Level III and above or any disaster declared by proclamation of the Governor under Section 7 of the Illinois Emergency Management Agency Act.

If the above does not apply (i.e. if the disaster does not reach the required level or the American Red Cross does not request the leave on behalf of the employee), Illinois law provides protection for those volunteer emergency workers in the event an emergency causes them to be late or miss time for work.

50 ILCS 748/5 (a) states:

No public or private employer may terminate an employee who is a volunteer emergency worker because the employee, when acting as a volunteer emergency worker, is absent from or late to his or her employment in order to respond to an emergency prior to the time the employee is to report to his or her place of employment. (b) An employer may charge, against the employee's regular pay, any time that an employee who is a volunteer emergency worker loses from employment because of the employee's response to an emergency in the course of performing his or her duties as a volunteer emergency worker. (c) In the case of an employee who is a volunteer emergency worker and who loses time from his or her employment in order to respond to an emergency in the course of performing his or her duties as a volunteer emergency worker, the employer has the right to request the employee to provide the employer with a written statement from the supervisor or acting supervisor of the volunteer fire department or governmental entity that the volunteer emergency worker serves stating that the employee responded to an emergency and stating the time and date of the emergency. (d) An employee who is a volunteer emergency worker and who may be absent from or late to his or her employment in order to respond to an emergency in the course of performing his or her duties as a volunteer emergency worker must make a reasonable effort to notify his or her employer that he or she may be absent or late.

Luckily, these laws only come into play sparingly due to the infrequent nature of disasters reaching to the levels described above.  Even so, employers should be aware of the laws and their implications.  Weather and natural disasters are unpredictable and seem to be occurring with much more frequency in the recent years.   Many other states throughout the country have laws similar to those described above.   For more information on these laws or any further employment related matters, please contact Dana Perminas, at (312) 334-3474 or dperminas@messerstrickler.com for more information.

Employers May Seek Orders of Protection against Workplace Violence

Earlier this year the State of Illinois enacted the Workplace Violence Protection Act which may aid employers in protecting their workforce, guests, customers and property.  The Act allows for the filing of orders of protection against employees who participated in violence, harassment or stalking at their place of employment.   The law applies to all employers that have at least 5 employees during any work week, whether the employer is an individual, partnership, corporation, association, limited liability company, business trust, government agency, the State, or a political subdivision.

Under the act, an employer may seek an order of protection to prohibit further violence or threats of violence by a person if:

1)      An employee has suffered unlawful violence or a credible threat of violence from the person; and

2)      The violence has been carried out or the credible threats of violence can reasonable carry out at employee’s place of work.

The House Bill 2590, which was the original bill that resulted in the Workplace Violence Protection Act, has been sponsored by State Senator Darin LaHood, who commented on the Act: “When an employee walks into work they should be afforded a certain level of protection from brutal acts of violence” stating that the Act gives an employer an opportunity to provide this protection.

An employer may also obtain an order of protection under the Illinois Domestic Violence Act of 1989, but under different circumstances:

1)      If an employer files an affidavit that shows reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence by the defendant; and

2)      If an employer demonstrates that great or irreparable harm has been suffered, will be suffered, or is likely to be suffered by the employee.

An employer may obtain the order of protection from the local court under the Workplace Violence Protection Act in order to protect their workplace from violence. 

For more information on orders of protection that may be filed by employers and for other employment matters you may contact Dana Perminas at (312) 334-3474 or at dperminas@messerstrickler.com

Nation’s First Statewide Settlement Agreement to Ensure Employment and Integrated Day Services for Individuals with Disabilities

On April 8th, 2014, the Justice Department entered into the nation’s first statewide settlement agreement with the State of Rhode Island supporting the civil rights of individuals with disabilities, stating that this group is unnecessarily segregated in facility-based day programs and workshops.  The settlement agreement came as a resolve to the Civil Rights Division’s findings announced on January 6th, 2014, which were a part of an Americans with Disabilities Act (“ADA”) Olmstead investigation.  That investigation focused on whether Rhode Island’s day activity service is over-relying on segregated settings, such as faculty-based day programs and sheltered workshops, while excluding integrative alternatives, including supported employment and integrated day services.

The settlement agreement will resolve the violations of the ADA for approximately 3,250 residents of Rhode Island with intellectual and developmental disabilities (“I/DD”).  The State will provide supported employment to approximately 2,000 individuals: at least 950 individuals currently in facility-based non-work programs, at least 700 individuals currently in sheltered workshops and approximately 300-350 students leaving high school.  Additionally, the State will provide transition services to approximately 1,250 youth between the ages of 14 and 21, ensuring that this group has access to a variety of transition, supported employment and vocational rehabilitation services.  The Justice Department and the State of Rhode Island jointly filed the settlement in federal district court, requesting that it be entered as a court-enforceable Consent Decree.  You may find the Fact Sheet about Proposed Consent Decree here.

For more information on the ADA and other employment-related federal and state regulations, you may contact Dana Perminas at dperminas@messerstrickler.com or at (312) 334-3474.