Articles Posted in Employment Law

A U.S. District Court judge in Chicago has denied employer Marsh USA’s summary judgment motion on Count V on Juanda Lynn Jordan’s Family and Medical Leave Act (FMLA) complaint. The complaint alleged that Marsh USA violated the FMLA’s anti-retaliation provision for exercising her right to medical leave because it honestly (though perhaps mistakenly) believed she had failed to provide appropriate documentation for additional time off when it terminated her employment.

The District Court Judge Matthew F. Kennelly examined two 7th Circuit Court of Appeals opinions: one where a firing that was based on the employer’s mistaken belief didn’t violate FMLA and another where the mistake didn’t provide a defense.

“An employer may be entitled to summary judgment on a retaliation claim where, based on a mistaken belief, it terminated an employee for reasons unrelated to the employee’s protected activities. Yet an employer is not entitled to summary judgment where it based its motivation for terminating an employee, or at least a key component of it, on a mistaken belief that the employee was ineligible for the FMLA’s protection.

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Two questions were certified for immediate appeal to the Illinois Appellate Court in a case against a school bus company, First Student Inc.  The case was brought on behalf of a student who alleged that the misconduct of a driver accused of sexually abusing a student could put the corporation owner at a heightened duty of care to the child.

“A private contractor providing student transportation services owes the students it transports the same duty of care imposed on a common carrier – that is, the highest standard of care,” the Second District Illinois Court of Appeals concluded.

The court considered this other question: “Does this quasi-common carrier standard of care necessarily require that common carriers be held vicariously liable for their employee’s intentional torts, such as sexual assaults, that are committed outside the scope of their employment, without regard to whether they have any knowledge of any such propensity?”

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The Illinois Appellate Court has affirmed a jury’s wrongful death verdict regarding the death of a woman who was hit by a truck as she stood on the side of a road next to her disabled car. The woman’s husband filed a wrongful death lawsuit against the truck driver, the truck’s owner, the trucking company that hired both of them and the logistics company who arranged for the shipping.

The woman’s family was successful at trial against all of the defendants in obtaining a jury verdict. On appeal the defendant’s argument centered on trial errors and agency issues.

The truck involved in the incident was in a supply chain routed for a major automaker. The automaker had arranged a particular supply change to reduce the time it would take to buy and hold parts, getting them only when the parts were needed.

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In April 2010, the plaintiffs Rose Schurer and Andrea DeVivo were driving westbound on Lawrence Avenue in Norridge, Ill., when an oncoming van crossed the center line and struck their vehicle. The eastbound van was driven by the defendant, 56-year-old Pawel Pawlowska.

The plaintiff, Schurer, suffered four fractures in her right leg and ankle, which required surgery. The second plaintiff, 42-year-old DeVivo, sustained a fractured pelvis requiring surgery. She later developed arthritis resulting in a total left hip replacement.

The plaintiffs Schurer and DeVivo maintained that Pawlowska was acting as a volunteer agent of the Catholic Bishop of Chicago (Archdiocese of Chicago) at the time of the crash because he was driving to a church to perform non-profit electrical work with installation of materials he recently purchased using the church’s tax-exempt status.

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Dr. Linda Bluestein was a shareholder in Central Wisconsin Anesthesiology S.C. and a member of its board of directors. After losing the vote that terminated her employment contract, Bluestein filed a lawsuit against the corporation for allegedly violating three statutes that protect “employees.” Those statutes were the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. The presiding federal judge concluded, however, that Bluestein was an employer of the corporation and not an employee. The court granted Central Wisconsin’s motion for summary judgment disposing of her lawsuit.

The 7th U.S. Circuit Court of Appeals in Chicago affirmed the trial judge’s order and applied the “non-exclusive list of six factors” that the U.S. Supreme Court adopted in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003), as criteria for determining whether a shareholder qualifies as an employee under statutes that don’t provide a “working definition” of the word.

The U.S. Court of Appeals tangled with the question of determining the meaning of the term “employee.” The Supreme Court reasoned that, when the statute (ADA) does not provide a working definition, the courts should turn to the common law test for determining who qualifies as an employee. Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003).

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Levia Moultrie began working at Penn Aluminum in 1990. Over the next 20 years, Moultrie worked in different positions, including forklift operator, block operator, utility coiler and scrap chopper.

In September 2008, Moultrie used his seniority to take on the job of forklift operator. The collective bargaining agreement between Moultrie’s union and Penn Aluminum gave Moultrie two days to show that he could perform the job.

A little more than a week after Moultrie switched into the forklift operator job, he began experiencing performance problems. During one shipment he was tasked with handling, Moultrie incorrectly hooked up some wires causing a delay in a shipment.

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The federal court rules are different than those in Illinois. Lawyers who may be used to operating under the Illinois Code of Civil Procedure need to be aware of Federal Rule of Civil Procedure 59(a), which says, “A motion to alter or amend a judgment must be filed no later than 28 days after entry of the judgment.” Under the Illinois Code of Civil Procedure, 735 ILCS 5/2-1202(c) and 5/2-1203(a), one is allowed 30 days to ask a state court judge to reconsider a judgment.

Unfortunately for Patricia Banks and her lawyer, she may have been following the Illinois Code of Civil Procedure rather than Federal Rule 59 when she asked the federal district court judge to reconsider the summary judgment it entered against her and in favor of the defendants.

Banks sued her former employer, the Chicago Board of Education, and her former supervisor, Florence Gonzalez, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and related violations of federal and state law. The case was filed in the U.S. District Court for the Northern District of Illinois.

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Wisconsin has a long history of protecting private and public labor unions. In fact, before 2011, Wisconsin granted broad protections and privileges to public-sector unions. This all changed when the Wisconsin legislature passed a new budget bill known as Act 10. This act reduced state and municipal employers’ collective-bargaining obligations to non-public safety employees in the public sector.

In a lawsuit brought by two public employee unions and an individual union member, the defendants argued that the changes by the Wisconsin legislature infringed on their First Amendment petition and association rights, and that Act 10 denied the union members equal protection under the law.

The U.S. District Court granted the state’s motion for judgment on the pleadings and the unions, the plaintiffs, brought this appeal.

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Non-competition agreements are usually a part of an employment agreement that the company develops; employees have access to company secrets, trade secrets and customer lists, all of which can be detrimental if known by those outside the company, including competitors. It has long been the case that the traditional non-competition agreements are difficult to enforce. In the case of Reliable Fire Equipment Co. v. Arredondo, 2011 Ill. 111871, the Illinois Supreme Court reaffirmed the three-part rule of reason test courts have used to determine enforceability of an employment-based non-compete clause. In Reliable, it was held that a restrictive covenant is reasonable if it:  (1) is not greater than is required for the protection of a legitimate business interest of the promissee (usually an employer); (2) does not impose an undue hardship on the promisor (usually an employee); and (3) does not injure the public.

Illinois courts have held that traditional business interest requires a company to show a support for the non-competition agreement, but that is ill-defined. The test set out in the Reliable Fire case would require that extensive pretrial discovery be conducted in order to know if the employer has the facts to make out a case.

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Consideration is the essential ingredient for legally enforceable contracts. The same is true in at-will employment where an employee is required to sign a noncompetition agreement in order to keep his or her job. When the employee signs such a noncompete contract, the employer then promises a continued length of time of employment, which is similar to adequate consideration. 

The question in this case, where Eric D. Fifield was a new employee of Enterprise Financial Group (EFG), what was sufficient consideration for length of his employment?  The case turns on the “substantial period of time” of the length of employment promised by the employer.

In this case, the Illinois Appellate Court affirmed a declaratory judgment for Fifield and his new employer EFG in their lawsuit against Premier Dealer Services. 

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