Employment Law Chicago Blog

On December 12, 2018, the 7th Circuit affirmed the district court's dismissal of a lawsuit filed by a group of flight attendants, who alleged that their employer's compensation policy--paying for their work in the air but not on the ground--violated the federal Fair Labor Standards Act ("FLSA") and various state and local wage laws.  Hirst et al. v. SkyWest, Inc., et al., Nos. 17-3643 & 17-3660 (7th Cir. 12/12/2018).  The district court dismissed the complaint in its entirety, finding that the flight attendants had failed to allege a FLSA violation.  The fight attendants plausibly alleged that they were not paid for certain hours of work.  However, the 7th Circuit agreed with the other federal circuits, that under the FLSA, the relevant unit for determining a wage violation is not wages per hour, but the average hourly wage across a workweek.  Because the flight attendants failed to allege even a single workweek in which one them received less than the applicable minimum wage, the 7th Circuit affirmed the dismissal of their FLSA claims.

On November 29, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a Title VII retaliation lawsuit in which the plaintiff, a federal employee, alleged that his employer retaliated against him for filing an EEO complaint.  Lewis v. Wilkie, No. 18-1702 (7th Cir. 11/29/2018).  The plaintiff's employment had previously been terminated, but after a successful Equal Employment Opportunity ("EEO") complaint, he was reinstated to his former position as a cook.  He alleged that upon reinstatement, he was subjected to retaliation for his EEO activity through a variety of employment actions.  The 7th Circuit agreed with the district court's conclusion that none of the retaliatory actions alleged by the plaintiff constituted a materially adverse employment action.

On November 20, 2018, the 7th Circuit affirmed an order of summary judgment in a lawsuit in which the plaintiff alleged that her employer violated the Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII").  Riley v. City of Kokomo, Indiana Housing Authority, No. 17-1701 (7th Cir. 11/20/2018).  The plaintiff worked for the Kokomo Housing Authority for eight years before the termination of her employment.  During her employment, the plaintiff suffered from various disabilities, which required her to take leaves of absence.  She alleged that the housing authority improperly denied her requests for medical leave and retaliated against her for those requests by disciplining and terminating her, in violation of the FMLA.  She further alleged that the housing authority failed to provide her with reasonable accommodations for her disabilities and discriminated as well as retaliated against her in violation of the ADA.  She also claimed that she was subjected to retaliation for engaging in protected activity in violation of Title VII.

On November 1, 2018, the 7th Circuit affirmed an order of summary judgment in favor of an employer-defendant on a breach of contract claim brought by a former employee-physician, who alleged that the defendant breached her employment separation agreement by releasing a credentialing form with some "fair" ratings to a potential employer.  Gallo v. Mayo Clinic Health System-Franciscan Medical Center, Inc., No 17-1623 (7th Cir. 11/1/2018).  The plaintiff resigned her employment and entered into an employment separation agreement to prevent the defendant from saying anything negative about her to prospective employers in response to employment inquiries.  Subsequently, her former supervisor rated her performance as "fair" on two criteria in a credentialing form.  She sued for breach of the separation agreement, alleging that as a result of the breach, she was not hired for a subsequent position by a prospective employer with whom she had entered into employment contract negotiations.  The separation agreement indicated that no reference will be made to any performance issue and nothing derogatory will be stated to potential employers seeking a reference.

On October 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in a Title VII lawsuit in which the plaintiff, a former dental assistant at a Veterans Affairs dental clinic, alleged that he was discriminated against based on his gender (male) and race (Hispanic), he was retaliated against for filing EEO complaints, and he faced a hostile work environment.  Abrego v. Wilkie, Secretary of Veterans Affairs, No. 17-3413 (7th Cir. 10/30/2018).  Under Title VII of the Civil Rights Act of 1964 ("Title VII"), it is unlawful for an employer to discriminate against an employee based on race, color, religion, sex, or national origin.  To prevail on a Title VII employment discrimination claim, a plaintiff-employee must prove three elements: (1) she is a member of a protected class; (2) she has been subjected to an adverse employment action; and (3) that the employer took the adverse job action on account of the employee's membership in the protected class.

On October 22, 2018, the 7th Circuit ruled that the district court erred in invalidating a waiver clause in the parties' arbitration agreement, vacated the district court's order enforcing a $10 million arbitration award in a collective action under the Fair Labor Standards Act for multiple wage claims, and remanded the case to the district court to conduct the threshold inquiry regarding class or collective arbitrability to determine whether the arbitration clause of the employment agreement authorizes collective arbitration.  Herrington, et al. v. Waterstone Mortgage Corporation, No. 17-3609 (7th Cir. 10/22/2018).  The plaintiff-employee filed a collective action against her employer for alleged minimum wage and overtime wage and hour violations of the Fair Labor Standards Act ("FLSA").  A collective action allows similarly situated employees to opt in to the lawsuit.  The district court compelled arbitration pursuant to the arbitration agreement between the employer and employee, but struck down as unlawful a waiver clause that appeared to forbid class or collective arbitration of the plaintiff's claims.  The arbitrator conducted a collective arbitration over the employer's objections and awarded more than $10 million in damages and attorneys' fees to the plaintiff and 174 similarly situated employees.