Articles Posted in Employment Law

The right to free speech is the very first Amendment to our Constitution, and it’s one of the most frequently cited amendments, especially when things get heated between two individuals or political parties. The right to free speech, specifically as it relates to public figures, was promised by our founding fathers as a way to protect our democracy. The idea is that free speech encourages an open debate and exchange of information and ideas about candidates before people head to the polls, but is there a difference between what’s legal and what’s ethical?

Because of the importance of being able to exchange information about political candidates and public figures, the law is designed to make it more difficult for public figures to sue for defamation, but what if, instead of suing for defamation, you have a conversation with the employer of the person whose speech you don’t like about whether their speech is ethical?

Bandy X. Lee, a psychiatrist who used to work at Yale University, published a tweet back in January of 2020 when Donald J. Trump was facing an impeachment trial. His attorney, Alan M. Dershowitz, came under fire for his connections to Jeffrey Epstein, who had been accused of sex trafficking. Mr. Dershowitz said he and his wife enjoyed a “perfect sex life,” and Dr. Lee pointed out that the use of the word “perfect” suggested Mr. Dershowitz was under a “shared psychosis” with his client, Mr. Trump, who also likes to use the word “perfect” a lot. Continue reading ›

Can Illinois employers fire employees for their political speech or affiliations? The events of the January 6, 2021 Capitol riots along with the riots and protests across the country throughout the summer of 2020 have led many employers to ask similar questions. And as protests become more commonplace and political debates run rampant on social media, employers and employees alike will be seeking answers to this question more and more frequently as time passes.

As with most questions in employment law, the answer depends on the circumstances. Generally speaking, Illinois, as an “at will” state, is more likely to permit a termination over political views than other more worker-rights-focused states such as California. Being an “at will” state means that an employer can fire its employees for any reason that is not prohibited by law or against public policy. Despite having one of the most liberal human rights acts of all the states, however, the Illinois Human Rights Act is silent when it comes to private employer discrimination based on political party affiliation and political speech. The Illinois Human Rights Act prohibits discrimination based on a specific protected trait or class including race, color, religion, sex (including sexual harassment), citizenship status, familial status, national origin, ancestry, age (40 and over), order of protection status, marital status, sexual orientation (including gender-related identity), physical or mental disability, pregnancy, military status or unfavorable discharge from military service, and, in certain circumstances, arrest record. Notably absent though is political affiliation or speech. Continue reading ›

Michael Papandrea, the owner of three restaurants in the Chicago suburbs, is being sued for allegedly sexually harassing and secretly recording at least eight female employees in his restaurants, although investigators think Papandrea’s misconduct extends far beyond the eight plaintiffs in the existing lawsuit.

Papandrea is the owner of Parmesans Wood Stone Pizza in Frankfort, Tinley Park, and Matteson, and according to the lawsuit, he regularly instructed his female employees to wear skirts and dresses to work, and routinely touched them, including rubbing and poking their backs, arms, and shoulders. His habit of touching them was allegedly an excuse to get close enough to them to film up their skirts using a camera he kept in the toe of his shoe and controlled with an app on his phone.

The employees (all of whom were teenagers at the time of the alleged misconduct), reported the harassment to their supervisor, but as the owner of the restaurants, Papandrea outranked her. The supervisor has also joined the sexual harassment lawsuit as a plaintiff, so the fact that she was also being harassed by Papandrea most likely contributed to her feeling she could do nothing to help her subordinates.

Of the eight named plaintiffs alleging sexual harassment, most of them were underage at the time – five of them were 16, one was only 14, and one was 18. Continue reading ›

By now, we’ve all gotten used to hearing stories of high-level executives of huge corporations getting fired for misconduct, and while some people might be glad to see some signs of accountability, it’s usually bittersweet when it gets announced that they received a severance package worth tens of millions of dollars. But now McDonald’s is suing their former CEO, Steve Easterbrook, to return the $37 million he was paid as part of his severance package, claiming his misconduct was more extensive than they realized at the time they negotiated his severance package.

Easterbrook was removed as CEO back in November of 2019 for having a personal relationship with a female colleague. The relationship was apparently consensual and consisted of nothing more than text messages and video calls, but it violated company policy, and as a result, Easterbrook was fired from his position as CEO without cause.

Only after Easterbrook had been fired, and had negotiated his severance package with the company, did the company receive information from an anonymous source claiming Easterbrook had had sexual relations with at least three other women at the company. In one instance, Easterbrook allegedly approved a discretionary stock grant worth hundreds of thousands of dollars to be granted to one of the women while they were involved. Continue reading ›

Pinterest is far from the first tech company to face allegations of gender discrimination, but it is the first to publicly announce that it will be paying more than $20 million to settle those allegations in a recent lawsuit involving a single plaintiff.

Françoise Brougher, the company’s former chief operations officer, sued the company in San Francisco Superior Court back in August, claiming she was paid less than her male peers, received feedback that was gender-biased, and was left out of meetings – all this despite the fact that she played a key role in driving revenue for the company.

Pinterest has reached a settlement agreement with Brougher and her attorneys in which Pinterest will pay them $20 million, and Pinterest and Brougher together will donate a total of $2.5 million to organizations that work to advance women and other minorities in tech. According to reports, the money is to be paid before the end of 2020.

The settlement did not include Pinterest admitting to having done anything wrong, and in fact, the company continues to insist it values diversity, equity, and inclusion in its workplace. Brougher even released a joint statement with Pinterest to that effect, claiming she’s encouraged by the company’s commitment to building a workplace culture that includes and supports all its employees. Continue reading ›

Amazon claims it fired Chris Smalls, a management associate, in March for violating safety procedures by continuing to come to work after having been exposed to COVID-19, despite the fact that the company says it offered to pay him to stay home for 14 days after the exposure. Smalls, who is suing his former employer in the Eastern District of New York for discrimination and retaliation, tells a different story.

According to Smalls, Amazon failed to take several safety precautions related to the pandemic, including taking employees’ temperatures before allowing them on the premises; providing hand sanitizer or personal protective equipment, such as masks and gloves; enforcing social distancing; or making sure the facility was properly cleaned and sanitized between shifts.

In the complaint, Smalls said he felt a responsibility to bring his concerns to management. He alleges management did not care about the health or welfare of the employees working under him because they were largely Black, Latino, and/or immigrants whose recent entry into the country made them unlikely to speak up on their own behalf. When Smalls again met with Amazon management, this time with a group of workers that included white employees, he alleges management was significantly more receptive to their complaints. Continue reading ›

The Americans with Disabilities Act requires employers to provide reasonable accommodation to qualified employees with disabilities. The key phrase in that sentence that is so often the subject of litigation is “reasonable accommodation.” In a recent decision, the Seventh Circuit considered whether a two-pound lifting limit and a restriction on repetitive grasping and lifting arms more than 5% above the shoulder were reasonable accommodations for an employee of a regional sporting goods retailer. In affirming an order of summary judgment in favor of the sporting goods store, the Seventh Circuit found that such accommodations were unreasonable and left the employee unable to perform her essential job functions.

The plaintiff in the case, Angela Tonyan, was employed as a store manager at a Dunham’s Sports store in Wisconsin. During her employment, Tonyan sustained a series of injuries to both shoulders and left arm. After multiple surgeries and various temporary restrictions failed to remedy her condition, her doctor imposed several permanent restrictions including a two-pound lifting limit and restricting her from having to raise her arms above her head.

In response to these restrictions, Dunham’s fired Tonyan. The sporting goods retailer contended that its “lean” staffing model made physical work such as unloading and shelving merchandise essential job functions of its store managers like Tonyan. Following her termination, Tonyan sued claiming that the company violated her rights to reasonable accommodation under the ADA. The District Court found that the store did not violate her rights under the ADA and granted summary judgment to her former employer. Continue reading ›

Over the coming weeks and months, employees will begin returning to work in increasing numbers across the state. As they do, employers will find themselves facing unique challenges created by the risk of workplace exposure to COVID-19. Potential transmission of COVID-19 by employees can create liability concerns for employers. The primary concern for employers is whether they will be entitled to the tort immunity typically provided by workers’ compensation laws in light of the unique nature of the COVID-19 pandemic. Far from being just a hypothetical concern, the first workplace COVID-19 exposure case in Illinois was filed a few weeks ago by the estate of an employee who passed away from complications of COVID-19.

Under many states’ workers’ compensation statutes, a claim under the state workers’ compensation system is the exclusive remedy for an employee who suffers a work-related injury. This is often referred to as the “workers’ compensation bar” or “exclusivity bar” and represents a trade-off for employers and employees. For employees, workers’ compensation laws make it easier for employees to recover from employers for workplace injuries. Many workers’ compensation laws are no-fault laws, meaning the employer must cover the employee’s injury even if it was not at fault for causing the injury. In exchange for lowering the threshold for recovery, the workers’ compensation laws usually prevent employees from suing their employer for additional compensation under a different legal theory for workplace injuries. Continue reading ›

Though it has been months since the initial cases of people being infected with Coronavirus Disease 2019 (COVID-19) surfaced, many employers in the United States still find themselves unprepared to respond to a local outbreak of the coronavirus. While Illinois and Chicago health officials seem sure that there is no indication of an Illinois outbreak any time soon, employers would be wise to begin preparing a response to an outbreak now rather than waiting until after one occurs. Any outbreak response plan must ensure compliance with the requirements of federal, state, and local employment and sick leave laws and ordinances, including special duties that may be triggered only during public health emergencies.

Can employers ask employees suspected of having or being exposed to the coronavirus to stay home?

Employers are under a general obligation to protect their employees from known hazards. In certain circumstances, this may include the coronavirus. However, employers must take care to establish policies that are nondiscriminatory and are not applied selectively or arbitrarily. Employers should not act on mere suspicion when asking an employee to stay home but should be able to articulate an objective basis for the suspicion (and document it) before asking an employee to stay home.

As the CDC and WHO have often reiterated, the best way to prevent the spread of the coronavirus is to quarantine infected individuals to prevent the spread of the virus and contact with the uninfected. In the workplace, this means employers should actively encourage sick employees to stay home as soon as they suspect being exposed to the virus, even before they begin displaying symptoms. Employers would be wise to also remind sick employees of any rights that they may have to paid time off when sick or caring for sick family members. If an employee is displaying symptoms of an acute respiratory illness such as fever, cough, or shortness of breath, employers can ask the employee not to return to work until he or she has been without a fever for no less than 24 hours.

Employers should also consider halting non-essential work-related travel, particularly to countries known to be coronavirus hotspots such as China, Italy, Japan, or South Korea. If an employee has recently returned from such a country, an employer should consider asking the employee to self-quarantine and work from home for up to 14 days, which is the virus’s estimated incubation and transmission period. Continue reading ›

After a group of students who were part-time library employees of the University of Chicago attempted to unionize, the University fought the organization attempt. The students won before the National Labor Relations Board, but the University refused to bargain with the students’ chosen representatives. The students and their union sued, and the 7th Circuit affirmed the issuance of an enforcement order by the NLRB.

In May 2017, the International Brotherhood of Teamsters Union Local No. 743 filed a petition with the National Labor Relations Board. Local 743 sought to represent for collective bargaining purposes a unit of part-time student employees of the University of Chicago Libraries. The University responded with a “statement of position.” In it, the University contended that the proposed unit of student employees was not appropriate for collective bargaining. The University gave three reasons, one of which was that the students were temporary employees who did not manifest an interest in their employment terms and conditions that were sufficient to warrant collective-bargaining representation.

The University followed a procedure set out in 29 C.F.R. § 102.66(c) to submit an “offer of proof” – a description of the evidence the University would present to the Board to show that student employees were not entitled to collectively bargain. At a pre-election hearing on May 17, 2017, the Board’s hearing officer explained that after reviewing the proposed evidence and testimony that the University would put on to support its arguments, the Board would not take evidence because the evidence proposed and the testimony all dealt with established Board law.

The Board’s regional director echoed the hearing officer’s assessment, concluding that the evidence was insufficient to sustain the University’s contentions. The regional director ordered an election for the representation of the unit proposed by Local 743. The University asked the NLRB to stay the election and review the regional director’s decision. The Board denied that request, concluding that the facts asserted in the University’s offer of proof were insufficient to warrant the conclusion that the library clerks should be deemed ineligible as temporary or casual employees. Continue reading ›

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