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McKenna Employment Bulletin – October 2014

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  • MILITARY RESERVE MEMBERS HAVE A FEDERAL RIGHT TO SELECT DAYS OFF FOR MILITARY TRAINING
  • ILLINOIS DISTRICT COURT HOLDS THERE IS NO ADEA LIABILITY AGAINST INDIVIDUALS
  • A RECURRING THEME IS THAT TITLE VII RACE DISCRIMINATION CHARGES REQUIRE COMPARATIVES
  • ILLINOIS STATUTE LIMITS EMPLOYER’S ABILITY TO CONDUCT CRIMINAL BACKGROUND CHECKS OF JOB APPLICANTS
  • THE PERIOD OF TIME IN A DOCTOR’S ESTIMATE DOES NOT LIMIT FMLA INTERMITTENT LEAVE

 

MILITARY RESERVE MEMBERS HAVE A FEDERAL RIGHT TO SELECT DAYS OFF FOR MILITARY TRAININGS

In Bello v. Vill. of Skokie, 2014 U.S. Dist. LEXIS 121664(N.D. Ill.Sept. 2, 2014), Baldo Bello, a police officer employed by the Village of Skokie and a staff sergeant in the United States Marine Corps Reserve, sued the Village of Skokie, his police chief and others claiming violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311. Section 4311(a) of USERRA prohibits discrimination "against persons who serve in the uniformed services" through the denial of "any benefit of employment by an employer on the basis of that membership." The police department had been allowing employees a set number of requested days off per month, but changed its policy to require that Reserve Officers use their set number of days for military leave. Bello alleged that the defendants violated this provision by denying him the opportunity to schedule his requested days off without regard to his requests for military leave because he is a military member. The Illinois District Court held that USERRA expressly recognizes the "opportunity to select work hours" as a benefit of employment that may not be denied on a discriminatory basis and held that Bello had a viable cause of action for discrimination under USERRA.
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ILLINOIS DISTRICT COURT HOLDS THERE IS NO ADEA LIABILITY AGAINST INDIVIDUALS

In Randle v. Chase Bank, 2014 U.S. Dist. LEXIS 121662(C.D. Ill.Sept. 2, 2014), the Illinois District Court held that there is no ADEA cause of action against individuals. The Seventh Circuit has yet to address this issue directly, but has held an individual is not a proper Title VII defendant in Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995), and noting a likelihood that there is no individual liability under the ADEA given the identical statutory definition of employer in the ADA and ADEA statutes. See Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 n.2 (7th Cir. 2001); Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 52 n.2 (7th Cir. 1995); Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 n.2 (7th Cir. 1995).
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A RECURRING THEME IS THAT TITLE VII RACE DISCRIMINATION CHARGES REQUIRE COMPARATIVES

In Moultrie v. Penn Aluminum International, LLC, No. 13-2206, September 10, 2014, 7th Circuit, an employee filed a Title VII action alleging that the employer demoted the employee for his work performance on account of his race. But, with respect to his Title VII action the plaintiff failed to present evidence that he was performing his forklift job up to the employer’s expectations where the record showed that the employee was involved in a series of mishaps during his operation of the forklift. Further, the court found that the plaintiff failed to identify similarly-situated employees who were treated more favorably. Therefore, judgment was entered for the employer.

Similarly, in Robinson v. American Red Cross, 2014 WL 2118710 (8th Circuit 2014), an African American, female employee was able to show in her race discrimination claim that she had met her employer’s legitimate expectations. However, the employee failed to show that similarly situated white employees who committed similar employment infractions were treated differently. The record showed that during the same time period in which the African American, female employee, was subject to suspension and termination, her employer suspended or otherwise disciplined at least two white employees and terminated at least 10 white employees. Therefore, the court ruled that the employee failed to establish a prima facie case that she was suspended and terminated because of her race.
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ILLINOIS STATUTE LIMITS EMPLOYER’S ABILITY TO CONDUCT CRIMINAL BACKGROUND CHECKS OF JOB APPLICANTS

On July 19, 2014, Illinois Governor Pat Quinn signed the Job Opportunities for Qualified Applicants Act, P.A. 98-774, which goes into effect on January 1, 2015. The law significantly limits the ability to request or review criminal background information of applicants as part of the hiring process. According to the Act, an employer may not inquire into or consider the criminal record or criminal history of a job applicant until the employer determines that the applicant is qualified for the position and either selects the applicant for an interview or, if there is not an interview, makes a conditional offer of employment to the applicant. Thus, the employer cannot inquire on their job application the criminal record or criminal history of a job applicant. The act specifically does not apply in situations in which federal or state law requires the exclusion of applicants with certain criminal convictions; a standard fidelity bond or equivalent is required and an applicant’s conviction would disqualify the applicant from obtaining such a bond; or the employer employs individuals licensed under the Emergency Medical Services Systems Act. The Illinois Act does permit employers to notify applicants in writing of the specific offenses that would disqualify an applicant from employment in a particular position. Employers must be cautious because such statements have the potential to invite scrutiny by the Equal Employment Opportunity Commission or the Illinois Department of Human Rights under antidiscrimination laws, which also place limits on an employer’s use of conviction or arrest records during the hiring process. Employers that do not comply with the new act will be subject to monetary penalties from the Illinois Department of Labor. But, there is no private right of action under the Act.
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THE PERIOD OF TIME IN A DOCTOR’S ESTIMATE DOES NOT LIMIT FMLA INTERMITTENT LEAVE

In Hansen v. Fincantieri Marine Corp., LLC, No. 13-3391 (August 18, 2014, 7th Circuit), the plaintiff filed an action alleging the defendant violated the FMLA when it terminated the plaintiff for excessive absenteeism at a time when the plaintiff was attempting to use FMLA leave. The record showed the plaintiff had exceeded the number of absences that the plaintiff’s physician estimated on the doctor’s FMLA certification form that plaintiff would need to address his depression. Even though the plaintiff had no expert evidence to establish that the series of absences, that were beyond the estimated number of absences, were related to his depression, the court ruled the plaintiff did not need to have such expert evidence because his physician was able to testify about the plaintiff’s condition and the plaintiff was able to testify about the reasons for the absences. The court held that the estimate made by the plaintiff’s physician in the original medical certification form did not serve as the outer limit in terms of number and duration of absences that the plaintiff could take to address his depression condition when taking intermittent leave under the FMLA.
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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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