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McKenna Employment Bulletin – February 2014

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EMPLOYERS IN ILLINOIS MAY SEEK AN ORDER OF PROTECTION FOR THEIR EMPLOYEE

The Illinois Workplace Violence Prevention Act, effective January 1, 2014, provides that an employer may seek an order of protection to prohibit further violence or threats of violence by a person against an employee if two requirements are present. First, the employee must have suffered unlawful violence or a credible threat of violence from a person. Second, the unlawful violence was carried out at the employee’s place of work or the credible threat of violence can reasonably be constructed to be carried out at the employee’s place of work. The Act provides that the employer’s remedies under this Act are limited to an order of protection.

There is no section of this statute allowing a private cause of action. The purpose of the statute is to assist employers in protecting its workforce, customers, guests and property by limiting access to the workplace by potentially violent individuals. One question is whether an employer has to use this statute if the employer receives notice of violence or threats of violence. These are defined in the statute as any act of violence, harassment, or stalking as defined by the laws of Illinois.
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POTENTIAL LOSS OF 40-70% OF TIPS IS AN ADVERSE ACTION SUPPORTING A RETALIATION CLAIM

In Alexander v. Casino Queen Inc., No. 12-3696, January 8, 2014, 7th Circuit, plaintiffs cocktail waitresses filed a Title VII action alleging that the employer subjected them to unequal terms of employment on account of their race and in retaliation for complaining about race discrimination. The plaintiffs alleged that the employer had reassigned the plaintiffs to unfavorable floor assignments within the Casino and disciplined them more harshly than their Caucasian co-workers. The court found that a potential for lost tips that waitresses incur through reassignment and discipline was normally insufficient to constitute an actionable adverse act. However, the court found that the loss of potential tips in this case was a sufficient adverse act because the tips comprised between 40-70% of the waitresses’ wages.
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A CONTRACT TO RETIRE STOPS AN AGE CLAIM

In Ortony v. Northwestern University, No. 12-3897, December 3, 2013, 7th Circuit, the employee alleged in an ADEA action that the employer terminated the employee-tenured university professor on account of his age pursuant to a 2007 contract. That contract gave the plaintiff two years of paid leave of absence and then required him to work 3 more years in exchange for the plaintiff’s resignation in 2012. The employee insisted in 2011 that he did not want to retire and had not agreed to do so. However, the court found the terms of the contract were clear that the employee had agreed to resign in 2012. The court held that the ADEA allowed an employee to trade his right to continue to work in exchange for a retirement package. Furthermore, the court held that the plaintiff’s 2011 ADEA charge of discrimination was not timely because the relevant 300 day limitation period for filing an EEOC charge was triggered when the 2007 contract was signed, and not when the plaintiff was reminded in 2011 that he had agreed to the retirement date of 2012.

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IF YOU SUSPEND AN EMPLOYEE PENDING TERMINATION THAT IS NOT A TERMINATION

In Spurling v. C & M Fine Pack, Inc. No 13-1708, January 13, 2014, 7th Circuit, the plaintiff filed an ADEA action alleging that the employer terminated the employee on account of her narcolepsy disability. The defendant claimed it issued on April 15, 2010 an e-mail notifying the employee that she was suspended pending termination and that the e-mail constituted plaintiff’s effective termination date which was prior to the April 28, 2010 date that the plaintiff notified the employer of the employee’s disability. The court held the e-mail did not constitute plaintiff’s termination because the email merely initiated an investigation into her termination. Thus, the plaintiff was still employed at the time the defendant became aware of her disability. Further, after the plaintiff’s notice, the defendant failed to engage the plaintiff in an interactive process to determine an appropriate accommodation. The employer had ignored the medical evaluation of the plaintiffs’ narcolepsy. In addition, the employee’s requested accommodation of additional time to seek medical testing and a prescription to control her narcolepsy was readily available.
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A VIOLATION OF YOUR WORK RULES MAY PREVENT AN AGE CLAIM

In Rabe v. United Airlines, Inc., 2013 WL 5433251 (7th Circuit 2013), a flight attendant who was a French citizen and a lesbian over 40 years of age was fired after an investigation revealed that she had violated the airline’s rules governing the use of employee travel tickets. The flight attendant alleged discrimination under Title VII or the ADEA. The flight attendant showed that she was a member of multiple protected classes and her termination was an adverse employment action. However, she failed to show that other workers who engaged in the same misconduct were treated more favorably. While the employee referred to 46 other Hong Kong-based employees who allegedly violated the airline’s travel ticket policy, the employee did not explain the documentary evidence in support of her claims and did not provide any evidence as to whether these alleged co-employees where members of her protected class. Further, the plaintiff did not show that the airline was even aware of the other employees’ alleged violations.
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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 Publications



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