Whether a non-competition or non-solicitation agreement is valid and enforceable under Illinois law depends upon the specific terms of the agreement, as well as the unique facts and circumstances surrounding the agreement, employment, separation of employment, and post-employment employee conduct.
The first question is whether adequate consideration exists to support a restrictive covenant.
On February 4, 2021, the 7th Circuit reversed a district court's order dismissing a USERRA lawsuit. White v. United Airlines, Inc., No. 19-2546 (7th Cir. Feb. 4, 2021). In 1994, Congress passed the Uniformed Services Employee and Reemployment Rights Act ("USERRA"), with the goal of prohibiting civilian employers from discriminating against employees because of their military service. 38 U.S.C. § 4301(a). The question in this case was whether USERRA’s mandate that military leave be given the same “rights and benefits” as comparable, nonmilitary leave requires an employer to provide paid military leave to the same extent that it provides paid leave for other absences. The 7th Circuit held that paid leave falls within the set of “rights and benefits” defined by USERRA and, therefore, employers are required to provide paid military leave under USERRA to the same extent that employers provide paid leave for non-military absences such as paid sick leave and the like. This was a question of first impression for the 7th Circuit.
On March 18, 2020, the President signed into law the Families First Coronavirus Response Act ("FFCRA"), which creates two new emergency paid leave requirements in response to the COVID-19 global pandemic. The Emergency Paid Sick Leave Act ("EPSLA") entitles certain employees to take up to two weeks of paid sick leave. The Emergency Family and Medical Leave Act ("EFMLEA") permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are partially paid. On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), which amended certain provisions of the EPSLA and EFMLEA.
The FFCRA generally covers private employers with fewer than 500 employees and certain public agencies with one or more employees.
On December 3, 2019, the Illinois Appellate Court, First District, affirmed an order of summary judgment in favor of an employer-defendant in a lawsuit in which an unsuccessful job applicant alleged that her rights under the Illinois Employee Credit Privacy Act ("Act") were violated when she was not hired as a result of an investigation of her credit history. Rivera v. Commonwealth Edison Company, 2019 IL App (1st) 182676 (12/3/2019). The plaintiff claimed that the defendant's actions of investigating her credit history in connection with a conditional offer of employment and refusing to hire her because of the results of the investigation violated the Act.
On May 17, 2019, the Illinois Appellate Court, Third District, held that a corporate employer may be liable under the Illinois Gender Violence Act ("IGVA") (740 ILCS 82/10 (West 2016)) arising from gender-related violence perpetrated by the employer's corporate employees (which would include 'physical' workplace sexual harassment). Gasic v. Marquette Management, Inc., 2019 IL App (3d) 170756 (3d Dist. May 17, 2019). The Gasic decision expands the liability of Illinois employers for gender-based workplace violence, workplace sexual assault, and physical sexual harassment committed by their employees. In this case, the plaintiff, an alleged victim of sexual violence, filed a complaint against the employer of the alleged perpetrator, alleging a statutory cause of action against the defendant employer under section 10 of the IGVA, based on the alleged acts of the employer's employee. The trial court dismissed the claim on the basis that the IGVA does not apply to corporate conduct. The following question was certified for appeal: "[C]an an entity be considered a 'person' committing acts 'personally' for purposes of liability under the Gender Violence Act?" The Illinois Appellate Court answered the question in the affirmative, and reversed the trial court's dismissal of the plaintiff's statutory claim under the IGVA.
On June 25, 2018, the 7th Circuit affirmed the district court's grant of summary judgment on a claim for breach of an employment compensation plan, but reversed the district court's grant of summary judgment on the plaintiff's wage claim under the Illinois Wage Payment and Collection Act. Sutula-Johnson v. Office Depot, Inc., No. 17-1855 (7th Cir. 6/25/2018). The plaintiff sued her former employer alleging that its changes to her employee compensation plan for selling office furniture breached its employment contract with her and violated the Illinois Wage Payment and Collection Act (the "Act"). In her claim for breach of employment contract, the plaintiff contended that the defendant did not effectively amend its employment contract with her until she signed a written acknowledgement form on a certain date. She argued that prior thereto, any amendment to her employment contract was without consideration; and that she did not accept the new terms until she signed them. Thus, it was the plaintiff's position that a new contract was not formed until she signed the acknowledgment, and that the defendant breached her previous contract by failing to comply with the old compensation plan through the date she signed the acknowledgement. She also argued that the defendant breached her employment contract by retroactively reducing her commissions.
On August 31, 2017, the 7th Circuit affirmed an order of summary judgment in favor of an employer in a federal lawsuit in which the plaintiff, a tenured university professor, alleged that the university discriminated against him because of his race, retaliated against him for complaining about discrimination, denied him due process of law, defamed him, and breached an employment contract created by an employee handbook. Grant v. Trustees of Indiana University, et al., No. 16-1958 (7th Cir. 8/31/2017). The question on summary judgment is whether the defendants have shown that there is no genuine dispute as to any material fact and are entitled to judgment as a matter of law. On appeal, the appellate court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. However, he is only entitled to the benefit of inferences supported by admissible evidence, not those supported only by speculation or conjecture.
On August 2, 2017, the 7th Circuit reversed an order of summary judgment in a sexual harassment, sex discrimination and retaliation lawsuit that was filed in federal court under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Illinois Human Rights Act ("IHRA"). Nischan v. Stratosphere Quality, LLC et al., No. 16-3464 (7th Cir. 8/2/2017). The plaintiff alleged that she was subjected to unlawful sexual harassment in her employment, and that she was fired in retaliation for filing a complaint about it. The 7th Circuit held that the plaintiff offered sufficient evidence to support her sexual harassment claim to survive summary judgment. The plaintiff alleged that a co-worker relentlessly sexually harassed her, including unwelcome sexual advances and sexual propositions as well as offensive, outrageous physical touchings of private areas of her body, and sexually offensive comments and questions. She also alleged that managerial level employees knew about the sexual harassment, but failed to do anything about it.
Effective July 1, 2017, employers of any size with a place of business within Cook County, Illinois will be required to provide paid sick leave to their covered employees under the new Cook County Earned Sick Leave Ordinance. A covered employee is defined as any employee who, in any particular two-week period, performs at least two hours of work for an employer while physically present within Cook County. Any covered employee who works at least 80 hours for an employer within any 120-day period is eligible to accrue one hour of earned sick leave for every 40 hours worked, up to a cap of 40 hours' earned sick leave per 12-month period. An employee may carry over to the following 12-month period half of his or her unused accrued earned sick leave, up to a maximum of 20 hours. A covered employee is entitled to use no more than 40 hours of earned sick leave per 12-month period.
In 2016, several new Illinois employment law statutes as well as a City of Chicago Ordinance were enacted, many of which expand employee leave of absence rights. Here is a summary of the new Illinois and Chicago employment laws.
Illinois Employee Sick Leave Act:
Illinois employers who provide paid sick leave must allow employees to use their paid sick leave time to care care for their immediate family members, parents-in-law, grandchildren or grandparents.
Illinois Child Bereavement Leave Act: