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McKenna Employment Bulletin – August 2015

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  • REQUEST FOR LIGHT DUTY MUST MATCH THE DOCTOR’S RESTRICTIONS
  • U.S. DEPARTMENT OF LABOR ISSUES GUIDANCE ON CLASSIFYING WORKERS
  • INFORMATION AVAILABLE TO THE PUBLIC IS NOT PROTECTED CONFIDENTIAL INFORMATION
  • LACK OF KNOWLEDGE OF THE EMPLOYEE’S PRIOR COMPLAINT STOPS A RETALIATION CLAIM
  • FAILURE TO SHOW INTENT STOPS A RACE DISCRIMINATION CLAIM

 

REQUEST FOR LIGHT DUTY MUST MATCH THE DOCTOR’S RESTRICTIONS

In Swanson v. Village of Flossmoor, No. 14-3309, July 24, 2015, 7th Cir., the plaintiff in an American with Disabilities Act case alleged that the employer failed to reasonably accommodate the plaintiff-police detective’s return to work from his first stroke by not permitting him to work exclusively at a desk position. The plaintiff-employee’s request for a “light duty”/desk position did not match his physician’s suggestion of “part-time” work. The employer accommodated the employee’s disability by allowing him to perform his normal duties on a part-time basis, as the employee’s physician suggested, and to use the employee’s paid medical leave for the balance of his work schedule. In addition, the Court found that the employee could not assert any ADA claim arising out of his second stroke because the employee’s resignation letter indicated that his second stroke rendered him completely unable to resume his detective job duties. Thus, the Court entered judgment for the employer.
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U.S. DEPARTMENT OF LABOR ISSUES GUIDANCE ON CLASSIFYING WORKERS

The U.S. Department of Labor has issued guidance spelling out how to determine whether a worker is an employee or an independent contractor. The guidance comes because a growing number of employers are trying to contract out their services to third parties. The U.S. Department of Labor guidance states that under the Fair Labor Standards Act (FLSA), most workers are employees because the FLSA broadly defines “employ” as “to suffer or permit to work.” The guidance says that employers are to use the usual “economic realities test,” which focuses on whether a worker is economically dependent on the employer and takes into account several factors. These factors are: is the work an integral part of the employer’s business; does the worker’s managerial skill affect the worker’s opportunity for profit or loss; how does the worker’s relative investment compare to the employer’s investment; does the work performed require special skill or initiative; is the relationship between the worker and the employer permanent or indefinite; and what is the nature and degree of the employer’s control. The guidance states that these factors must be considered as a whole, and not in isolation.

Employers have to analyze what they are doing from the start. Having an agreement with a worker saying he is an independent contractor doesn’t protect the company from liability if the factors of employment show an employee and not an independent contractor relation. If the workers are reclassified as employees, a company could be required to pay taxes and overtime retroactively.
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INFORMATION AVAILABLE TO THE PUBLIC IS NOT PROTECTED CONFIDENTIAL INFORMATION

In Instant Technology LLC v. DeFazio, Nos. 14-2132 and 14-2243, July 14, 2015, 7th Cir., the plaintiff-employer alleged that the defendants-former employees breached the terms of the employees’ restrictive covenants when the former employees began employment with a competing employment agency following their termination from the plaintiff-employer. The Court ruled the employer failed to establish that the employees accessed the employer’s proprietary information about its clients after leaving their positions at the plaintiff. Further, the employees admitted to breaching the covenant not to solicit the employer’s staff or recruit plaintiff’s clients. However, the Court found that the covenants not to solicit were unreasonable. This was because tech-staffing firms, such as the plaintiff-employer’s, generally do not build relationships with their clients; the information about those clients could be found in other public forums; and the employer could not rely on its interest in a “stable workforce” to justify the covenant not to recruit.
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LACK OF KNOWLEDGE OF THE EMPLOYEE’S PRIOR COMPLAINT STOPS A RETALIATION CLAIM

In Burks v. Union Pacific Railroad Company, No. 14-2707, July 13, 2015, the plaintiffs alleged that the employer retaliated against them by denying them requested promotions in retaliation for having filed prior complaints of race discrimination. However, the record showed that the individuals responsible for giving one of the plaintiffs information about the application process were unaware of any prior protest of race discrimination. Further, there were no available positions within that plaintiff’s district while his application was on file. In addition, another plaintiff could provide only speculation that the employer “losing” his application was motivated by the prior complaint of race discrimination. The same plaintiff also failed to submit any evidence that anyone providing him with information regarding the application process was aware of his prior complaint of discrimination. Thus, judgment was entered for the employer.
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FAILURE TO SHOW INTENT STOPS A RACE DISCRIMINATION CLAIM

In Miller v. St. Joseph County, Indiana, No. 14-2989, June 9, 2015, 7th Cir., the plaintiff-employee alleged that the defendant-employer gave the plaintiff an undesirable job assignment and failed to promote him to two supervisory positions on account of his race. However, the plaintiff failed to present any evidence indicating that his race played a factor in the denial of his promotions. Further, the record showed that the selected candidates had better qualifications than the plaintiff because of greater job experience. Finally, the undesirable job assignment which required the plaintiff to supervise the evidence/property room in the Sheriff’s Department was of short duration, after which the plaintiff was returned to his prior position. Thus, judgment was entered for the employer.
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This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Employment Law Publications



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