Just a Lawyer in Lincoln's Hometown

October 3, 2017

Employers are Responsible

Filed under: Employment Law — Chuck @ 7:30 am

This case has been decided for quite some time now (although its only yesterday in “law time”), but the Seventh Circuit case of ANICICH v. HOME DEPOT came to mind after a potential client spoke to me. The Federal Court applied Illinois law: specifically ” Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury.” Unusual about this case is that the wrongful act of the bad employee took place away from the premises of the employer.

The Federal Court of Appeals found that the employer (actually joint employers) had a duty to protect its employee from the criminal acts of a supervisor, even away from the workplace. The supervisor in question had a history of sexually harassing employees and was ordered by the employer to take anger management classes. This requirement was never enforced. Nor did the employer remove supervisor of his supervisory responsibilities.

He then allegedly threatened the employee with firing or a reduction of hours if she refused to go with him on a non-business trip.  The employee agreed – and was  murdered and then raped when she refused to have a sexual relationship with him.

Ruling (by overruling the trial court’s dismissal of the case) in favor of the heirs of the employee, the Seventh Circuit said that it was quite clear that all employers have a duty to act reasonably in the hiring, supervising and retaining of employees. If they do not “act reasonably in the hiring, supervising and retaining of employees”, they may be liable to the employee effected by acts of the other employee – especially supervisory employees.

Although the opinion is very technical, the overarching message for employers is that they cannot ignore the safety of their employees when they have reason to know that other employees present a danger.

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September 21, 2017

Employee Misclassification in Illinois

Filed under: Employment Law,Wage & Hour Law — Chuck @ 4:43 pm

A friend of mine, who is a building contractor in North Carolina, noted that a new employee misclassification law was coming into effect out there. While I declined to give him advice (even free) about another state’s law, the inquiry made me look again at the misclassification law in Illinois.

Per 820 ILCS 185/10, in Illinois any individual performing services for a building (or related) contractor is assumed to be an employee unless:

  • the individual is and will be free from virtually any control or direction over the individual’s work; AND,
  • the work performed by the individual is outside the usual course of services performed by the contractor; AND,
  • the individual is engaged in an independently established trade, occupation, profession or business; or the individual is legitimate sole proprietor or partnership (long list of tests in Sec C).

The law has been effect for a long time but it still is violated daily. Employees – stand up for yourselves. Employers – do it right!

August 22, 2017

Conscientious (or Scared) Employees Screwed by the Clock.

Filed under: Employment Law — Chuck @ 5:15 pm
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One of the more common methods of calculating pay for employees is “rounding.” Often employers will round employees’ time to a preset increment. In my experience it is to the nearest quarter-hour.

For example, if an employee clocks in at 8:55 a.m., the employer (or more likely the payroll company or software) will round the time to 9 a.m., erasing five minutes of work. Of course, if the employee clocks in at 9:05 a.m. the employer should round the time to 9:00 a.m. giving the employee a bonus.(The system was reasonable when all these calculations were made by hand – but that is rarely the case anymore.)

When rounding interacts with employer attendance policies, it can hurt employees. Conscientious employees tend to clock in a few minutes early in any case. But companies that strictly enforce tardy rules, get scared employees who don’t want to get in trouble for being late, and so they are coerced into clocking in early. in either case those extra minutes are rounded away.

The minutes add up. A 5-minute loss of time every work dayadds up to about 100 minutes per month per worker. While each individual worker loses only a little over an hour and a half of pay
per month (not insignificant but not usually enough to give the employee the incentive to take on the employer), the employer gets a lot of free work across the entire workforce.

Fairly applied rounding is generally allowed under existing wage rules. (Note that its not always applied fairly, I have encountered employers who rounded up all clock-ins, thus always stealing pay from the employee.)

June 20, 2012

Supreme Court Rules than Drug Co.Non-sales Reps are Sales Reps for Overtime

Filed under: Employment Law — Chuck @ 5:59 pm

Not unexpectedly the US Supreme Court just ruled that outside drug company representatives are exempt outside sales representatives for the purpose of overtime pay under the FLSA. In Christopher v. Smithkline Beecham Corp., the Court ruled that even though drug representatives who visit doctors cannot make sales, and that all legitimate sales of a prescription drug happen through a pharmacy, the reps are outside salesmen and therefore exempt from the overtime provisions of the FLSA. Go Figure!?

May 31, 2012

Bankruptcy issues relating to personal injury cases | Illinois State Bar Association

Bankruptcy issues relating to personal injury cases | Illinois State Bar Association.By  Brett J. Swanson

Despite difficult economic times, the American Bankruptcy Institute has noted the number of bankruptcy filings has dropped across the country. However, a recent opinion from the Illinois Appellate Court confirms that trial lawyers from both sides of the bar should be aware that bankruptcy filings can, and will, impact your case. In Berge, the First District found that the doctrine of judicial estoppel bars a plaintiff from proceeding with a cause of action in state court where the plaintiff fails to disclose the action as an asset in a bankruptcy petition. Berge v. Kuno Mader and DMG America, Inc., 354 Ill.Dec. 374, 957 N.E.2d 968 (1st Dist. 2011).

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Mr. Swanson is a smart guy. Thanks to ISBA for publishing this. Go read the full article in the Bar Journal. The federal courts here in the 7th Cir. will apply judicial estoppel to inchoate civil rights claims. Which is why I learned to, and now ask my prospective employment clients whether they have ever filed a bankruptcy claim!

March 29, 2011

Hey, listen up!

Filed under: Employment Law — Chuck @ 1:45 am
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Employers beware, when an employee makes an oral complaint that raises issues of overtime, wage payment, or minimum wages, it is now clear that an employer may not retaliate. The Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp., held that if an employee’s oral complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute,” it can trigger the anti-retaliation protections of the FLSA.

Although the Court specifically declined to rule in whether purely internal complaints are protected, a fair reading of the language used by the court makes it likely that the Court would rule that way if pushed to do so.

Employers, don’t retaliate. Employees, don’t be (as) afraid to complain about problems. Both sides, speak to an employment lawyer first.

Chuck from Watson Law, LLC

November 11, 2010

Oh Man! It aint right!

Filed under: Employment Law — Chuck @ 1:00 am
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Oh man! It aint right! All I did was tell the truth. And this lawyer says I can’t do anything. I oughta be able to sue the b_st_rd. He fired me for no good reason.

The newbie manager came to my line, and said that I had to change what I was doing. He said that if I ratcheted the framistat to the left instead of the right my plastic wrap machine would work twice as good. Well he was wrong. I’ve been working my machine for a whole month now, ever since I dropped out of school. Just because he’s a manager doesn’t mean he knows what he’s doing.

And I told him. After all, I’ve got a right to free speech, don’t I! Its in the constitution!

I told him idea was stupid. This newbie wasn’t going to tell me what to do. I told him his idea was stupid, wouldn’t work, and I wasn’t gonna do it. And you know what he did? He canned me!!

Well I know my rights, so I went to this lawyer. But he said I don’t have the right to tell my boss that he is stupid and I wasn’t going to do what he told me. He said that was insubordination and the boss could fire me if he wanted.

It ain’t right!

FromChuck from Watson Law, LLC

November 1, 2010

Hammerhead – About to get hammered

Filed under: Employment Law — Chuck @ 1:00 am
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Sam Hammer just started Hammerhead construction. He used to work for another small construction company and then became independent contractor with HugeCo, a manufacturing company. A wonderful carpenter, great guy, good buddy, and too cheap to hire a lawyer before he started the business. He decided to do things just like HugeCo.

So when Hammerhead got its first good job, Sam brought on Allen, Alice, and Albert to help. He brought them onto the job as independent contractors, the same as he was when he was working for HugeCo. Allen was the lead carpenter, and Alice and Albert took their instructions from him or Sam. Alice and Albert were new to the carpentry business. Neither of them had their own business. Neither of them advertised their services.

Although Allen, Alice and Albert brought their own hand tools with them to work, Hammerhead Construction provided all the other tools. Hammerhead provided the plans. Sam and Allen told Alice and Albert what needed to be done, in what order the work needed to be done and how it was to be done.

Sam felt that he needed to develop a reputation as a good contractor, so he worked long hours. He worked Allen, Alice and Albert long hours as well. They all worked 70 hours that first week. Sam was paying Alice and Albert $10/hour, and at the end of the first week, he gave them both a check for $700 even.

Alice and Albert both said, “Where’s our overtime?!” Stunned, Sam replies, “But you are independent contractors, you don’t get overtime.”

“Sam,” says Alice, “my brother is a lawyer, and he said we aren’t independent contractors. We are employees, and employees who work overtime get paid time and a half for anything over 40 hours a workweek. You owe us both another $150 bucks!”

Sam calls a lawyer, explains the situation and asks, “Are they right?”

“Yes they are. You give most all of the tools they use, you tell them where to work, when to work, and how to work. You didn’t hire their businesses, they don’t have any. They don’t hold themselves out as being available to do any other jobs. They do the same thing you do, but under your direct supervision.”

“Alice and Albert both look like any other employee. The fact that you said they were independent contractors doesn’t make them contractors. It is what is actually happening that matters here. If it walks like a duck, looks like a duck and quacks like a duck, it is a duck. Alice and Allen are employees, and you’ve got to pay them overtime.”

“Why didn’t you call me before bringing them on board?”

Chuck from Watson Law, LLC

October 28, 2010

George and His Return to Work – Redux

Filed under: Employment Law — Chuck @ 1:00 am
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Remember George? He works for HugeCo. He had to take a leave from work due to a slip and fall at home. His doctor said he could return to work. HugeCo said “not so fast”, and demanded that he undergo and Independent Medical Exam (IME) with a report that he could do 100% of his job duties before he came back.

George’s lawyer advised him, and HugeCo, that requiring an IME, when George’s doctor had already certified his return to work, violated the Family and Medical Leave Act.

HugeCo’s in house mouthpiece said “Aha, but the ADA says we can require an IME before George returns to work.” And the company is right (well, maybe). The ADA does allow for an IME when there is a legitimate reason to believe that an employee cannot do the duties of the job. The examination must be focused on the specific condition at issue. And, finally, the decision to do the examination must be consistent with a business necessity.

Whether HugeCo had a legitimate reason to believe that George couldn’t do his job will be based on the medical facts and the specifics of his job.

HugeCo had to tell the doctor doing the IME that he was to limit the examination to the condition at issue – here George’s back. The Doctor is not allowed to check George’s psych records or inquire into his eyesight, or other conditions that are unrelated to his back

Finally, HugeCo’s decision to have the IME conducted needs to be consistent with business necessity. A consistent policy related to the job must exist. Here is where George’s lawyer jumps back up. HugeCo has no written policy about return to work IMEs (or any other reason for an IME). George knew, in fact, that other warehouse workers had injured their backs (some far worse than George) and none had been required to undergo an IME to come back from an injury leave. HugeCo has trouble on its hands.

Chuck from Watson Law, LLC

October 25, 2010

George and his Return to Work.

Filed under: Employment Law — Chuck @ 1:00 am
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Let me introduce George, an employee for many years at HugeCo. George’s doctor gave him a off-work slip due to the acute back spasm caused by a slip and fall at home. George clearly could not work at the time (after all he was on major drugs and could not move almost at all – not a good thing for a warehouse worker), but did not have a long-term, chronic back problem. George asked for and received FMLA leave. While on leave George called in and complied with HugeCo’s leave policies.

After a week, the spasm was gone, and the doctor gave George a Return to Work slip, and a medically supported statement that George could do his job. But HugeCo would not let him come back to work. Why? HugeCo said he needed to undergo an independent medical exam (IME) to show he was able to do 100% of his job duties. (George’s supervisor, Bruno, had other, more nefarious reasons; but more about Bruno later.)

Does George have to take part in the IME? Probably not!

When HugeCo demanded the IME it violated the Department of Labor rules governing FMLA leave. The FMLA regulations state that an employer may require that the employee give certification of the ability to return to his or her job, but the employer may NOT keep an employee off work to have its own doctor provide the certification.

The careful employer will let George come back to work with even an unsupported return to work slip. An aggressive employer will require a fully compliant certification. But an employer that wants its own doctor to certify, has stepped over the line (unless authorized by state law or the ADA, more on this later).

HugeCo has left itself open to a complaint that it is interfering with George’s FMLA rights. George may have a claim.

Chuck from Watson Law, LLC

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