On November 22, 2016, the Illinois Appellate Court, Fourth District, reversed a jury verdict in favor of a plaintiff after a jury trial on her employment discrimination claims under the Illinois Human Rights Act. Schnitker v. Springfield Urban League, Inc., 2016 IL App (4th) 150991 (11/22/2016). The plaintiff alleged that the defendant violated the Illinois Human Rights Act by failing to rehire her for a teaching position on account of her race (Caucasian) and religion (non-Pentecostal). She prevailed in a jury trial, at the conclusion of which she was awarded $100,000 in damages. The defendant appealed on the ground that the plaintiff's jury instructions inaccurately stated the law by not requiring the plaintiff to prove causation. The appellate court agreed.
On October 19, 2016, the 7th Circuit reversed an order of summary judgment on Title VII and Illinois Human Rights Act ("IHRA") retaliation claims in which the plaintiffs alleged that the defendant refused to hire them as emergency medical technicians because of their prior sexual harassment complaints against interrelated business entities. Volling, et al. v. Kurtz Paramedic Services, Inc., No. 15-3572 (7th Cir. 10/19/2016). Under federal and Illinois law, it is unlawful for an employer to retaliate against an employee or job applicant because he or she engaged in protected activity such as opposing sexual harassment or any other unlawful employment practice of any employer. Illinois courts apply the federal Title VII framework to IHRA claims. To prevail on a Title VII retaliation claim, a plaintiff must establish that: (1) he or she engaged in a statutorily protected activity; (2) a materially adverse employment action was taken against him or her by the employer; and (3) there is a causal connection between the two. In the failure to hire context, a plaintiff must show that: (1) he or she engaged in protected activity; (2) he or she applied and had the technical qualifications required for the job position; (3) he or she was not hired for the position; and (4) a similarly situated individual who did not engage in protected activity was hired for the position.
On October 11, 2016, the 7th Circuit affirmed summary judgment on claims for race discrimination and retaliation. Williams v. Office of the Chief Judge of Cook County, Illinois, et al., Nos. 15-2325 & 15-2554 (7th Cir. 10/11/2016). The plaintiff, a probation officer who was told that she was fired for job abandonment, filed a lawsuit in which she alleged that she fired because of her race, in retaliation for complaining about racial harassment, and in retaliation for filing a workers' compensation claim. Under Illinois law, there is a common-law claim for retaliatory discharge when an employee is terminated in retaliation for exercising his or her rights under the Illinois Workers' Compensation Act (the "Act"). The employee must prove that he or she: (1) was an employee before the workplace injury; (2) exercised a right under the Act; and (3) that his or her discharge was causally related to the exercise of that right. That does not mean that an employer can never fire an employee who has filed a workers' compensation claim. An employer is not liable if its reason for the discharge is entirely unrelated to the employee's workers' compensation claim. The plaintiff claimed that the decision-maker fired her in connection with a dispute about her return-to-work date from her injury-related leave of absence. However, she failed to offer any evidence that the decision-maker knew of the dispute and, therefore, she could not establish the causal connection necessary to sustain her retaliation claim.
On September 27, 2016, the Illinois Appellate Court, First District, ruled in favor of a job applicant who claimed that she was denied employment because she failed a credit check, in violation of the Employee Credit Privacy Act (the "Act"). Ohle v. Neiman Marcus Group, 2016 IL App (1st) 141994 (9/27/2016). The Act prohibits an employer from inquiring into a potential employee's credit history and refusing to hire or discriminating against a job applicant because of her or his credit history. The Act provides an exemption where a satisfactory credit history is an established bona fide occupational requirement of the job. There are seven exemptions. The defendant claimed the exemption that the position gave the employee access to personal and confidential customer information. Trial court agreed with the defendant that the position fell within the exemption, but the appellate court reversed.
On September 30, 2016, the Illinois Appellate Court, First District, affirmed an order of the circuit court that awarded $1 million to a former employee for breach of an employment agreement. Reed v. Getco, LLC, 2016 IL App (1st) 151801 (9/30/2016). The subject employment contract contained a unique provision: the employee agreed to not compete with the employer for six months after termination of his employment for any reason; and the employer agreed to pay the employee $1 million if his employment terminated for any reason, unless he violated the non-competition covenant (or any other term of the agreement). The agreement also gave the employer the right to modify the restrictive covenant in its "sole and absolute discretion;" but provided that no waiver or modification of any term of the agreement would be effective without a writing signed by the party against whom the modification is enforced. Six years after signing the agreement, the employee resigned. A week later, the employer sent him an email stating that the restricted (non-compete) period is zero months or is waived; and he would not receive any non-compete payments.
On September 19, 2016, the Illinois Appellate Court, Third District, affirmed the trial court's order granting summary judgment in a retaliatory discharge case. Seeman v. Wes Kochel, Inc., 2016 IL App (3d) 150640 (9/19/2016). The plaintiff alleged that he was fired because of his protected activity of service to a volunteer fire department because he was fired for tardiness due to responding to a fire call. Under Illinois law there is a common-law tort claim for retaliatory discharge, which is an exception to the doctrine of employment "at will." A plaintiff must allege that he or she was discharged in retaliation for his or her protected activities and that the discharge violates public policy. Examples of retaliatory discharge that contravened public policy include where an employee was fired for refusing to violate a statute or evade jury duty, engaging in statutorily protected union activities or whistleblower activities, and filing a workers' compensation claim. Retaliatory discharge claims have not been successful when only private interests are at stake.
On September 2, 2016, the Illinois Appellate Court, First District, affirmed an order of summary judgment in a state court lawsuit in which the plaintiff alleged that his employment was terminated in retaliation for his workers' compensation claim and because of a work-related disability. Vulpitta v. Walsh Construction Company, et al., 2016 IL App (1st) 152203 (9/2/2016). The plaintiff worked for the defendant as a carpenter and carpenter foreman for approximately 12 years until he was laid off. The defendant contended that it laid off the plaintiff due to a work shortage, while the plaintiff alleged that he was terminated unlawfully in retaliation for exercising his rights under the Illinois Workers' Compensation Act and on account of his work-related disability. The Illinois Human Rights Act makes it unlawful for an employer to discriminate against an employee because of his or her disability. There is also an Illinois common law tort claim for retaliatory discharge, which is an exception to the general rule in Illinois of employment at-will. To state a claim for workers' compensation retaliatory discharge, a plaintiff must establish: (1) he was an employee of the defendant at or before the time of the injury; (2) he exercised a right under the Workers' Compensation Act; and (3) his discharge was causally related to the exercise of his rights. The element of causation cannot be met if the employer establishes a valid, nonpretextual basis for the discharge. The ultimate issue is the employer's motive in discharging the employee.
Another new Illinois employment law that expands employee rights, the "Employee Sick Leave Act," requires Illinois employers who provide employees with paid sick leave to allow their employees to use that time to care for the employees' immediate family members, parents-in-law, grandchildren or grandparents. The employer must allow the employee to use the paid sick time for family care giving just as he or she would be allowed to use the time for his or her own injury or illness, except that the employer may cap the time used for care giving in the amount that the employee would have accrued at 6 months. The federal Family and Medical Leave Act already requires covered employers to provide eligible employees with up to 12 weeks' unpaid leave to care for family members.
Effective July 29, 2016, the Illinois Child Bereavement Leave Act (the "Act") requires Illinois employers who are covered by the Family and Medical Leave Act to provide employees with up to 10 working days of unpaid leave of absence in the event of the death of an employee's child. Employees may substitute accrued paid leave for the unpaid bereavement leave. The Act also contains an anti-retaliation provision, which makes it unlawful for an employer to take adverse employment action against an employee who exercised his or her rights under the Act. Claims for violation of the Act may be filed with the Illinois Department of Labor or in court.
On August 19, 2016, Illinois Governor Rauner signed the "Illinois Freedom to Work Act" into law which, effective January 1, 2017, will prohibit employers from entering into non-competition agreements with low wage employees, i.e., employees earning less than $13.00 per hour. The new law will apply to Illinois employers of any size (who employ one or more employees). The law provides that no employer shall enter into a covenant not to compete with any low wage employee; and that any covenant not to compete so entered into is illegal and void.