So often, potential clients tell us in our very first meeting that they have a smoking gun – that single piece of evidence that will prove their case and win the day at trial – they have recorded a conversation in which their supervisor disclosed a discriminatory, retaliatory, or otherwise unlawful motivation for their termination. These days, with the ubiquity of smart phones and tablets capable of easily and surreptitiously recording audio, it seems a no brainer for employees who fear their employers are out to get them to record and keep that clear and unassailable evidence.
Unfortunately, as we have had to explain time and again to frustrated clients, recording those conversations without the consent of the supervisor (or even just using a recording taken without consent), has been a crime in the State of Illinois.
The Illinois Supreme Court struck down the Illinois Eavesdropping Law in its People v. Melongo decision published yesterday. Annabel Melongo had been charged under that law for recording and later publishing three telephone conversations she had with a State court reporter in an effort to prove that transcripts of court room proceedings had been fabricated against her. Sadly, after publishing those recordings online, she was charged with six counts of criminal eavesdropping and, ultimately, served an unimaginable twenty months in Cook County Jail as a result.
Ruling on a motion to dismiss that Ms. Melongo drafted herself, the Supreme Court reasoned that the statute, as currently written, “criminalized the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others.” Considering the purpose of the legislation (to protect conversational privacy), the court ruled that the scope of the statute is too broad and, as a result, held it unconstitutional on its face.
This decision could prove to be great news for employees and their smoking gun recordings.
However, it is worth noting that the Supreme Court’s examples of public conversations do not include a workplace communication between two employees. Additionally, Illinois legislators are already talking about acting to pass new legislation that cures the over-breadth concerns raised by the court but still criminalizes truly private conversations. Thus, it remains to be seen whether the current freedom to record will continue and, if not, how new legislation will define the boundaries of private conversation.
We certainly hope that an individual’s right to gather and preserve evidence of legal wrongdoing (and not just criminal conduct) will be taken into account in crafting any new legislation or exceptions thereto.
To read the full Melongo decision, follow this link: https://www.state.il.us/court/Opinions/SupremeCourt/2014/114852.pdf
The Family and Medical Leave Act (“FMLA”) affords eligible employees the right to take twelve work weeks of leave “[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). In its most recognizable application, this provision of the Act evokes situations in which an employee may require time off of work to provide physical care to a loved one such as driving that person to and from doctors’ appointments or administering his or her medications.
In the recent case of Ballard v. Chicago Park District, 2014 WL 294550 (7th Cir. Jan. 28, 2014), the Seventh Circuit examined just how far the “caring for” provision of the FMLA may extend, and in this particular circumstance, the Court concluded -- at least as far as a trip to Las Vegas.
Beverly Ballard worked for the Chicago Park District. Her mother, Sarah, was terminally ill, diagnosed with end-stage congestive heart failure. Beverly lived with her mother and acted as her primary caregiver. For instance, Beverly cooked her mother’s meals, administered her insulin, drained fluids from her heart, and bathed and dressed her.
Sarah began receiving end-of-life hospice support. As part of hospice, Sarah met with a social worker to discuss her last wishes and explained that she always wanted to take a family trip to Las Vegas. The hospice social worker secured funding for a six-day trip to Las Vegas through a non-profit foundation that provides end-of-life opportunities for terminally ill adults so that Sarah could fulfill her last dying wish. Beverly subsequently requested unpaid FMLA leave so that she could accompany her mother on this trip. While in Las Vegas, Beverly and Sarah participated in tourist activities as Beverly continued to serve as her mother’s caregiver. Several months after this trip, the Chicago Park District terminated Beverly, not approving her FMLA leave for the trip and counting those absences as unauthorized.
Beverly Ballard filed suit under the FMLA. The Chicago Park District moved for summary judgment, arguing that Beverly did not “care for” her mother in Las Vegas so as to qualify for FMLA protection because she was already providing Sarah with care at home and because the trip was not related to a continuing course of medical treatment.
The Court held that Beverly’s trip to Las Vegas with her terminally ill mother did meet the definition of “caring for” so as to qualify for protection under the FMLA. The Court reasoned that the plain language of the Act does not place geographic restrictions on the term “caring for.” The Court observed that the only restriction the Act imposes on “care” is that the family member for whom the employee cares must have a “serious health condition,” which the Chicago Park District did not dispute with regard to Beverly’s mother. The Court also relied on the Department of Labor Regulations to note that the Act defines “care” expansively to include both physical and psychological care. The Court also observed that, even though Sarah was in Las Vegas, her basic medical, hygienic, and nutritional needs did not change, and Beverly continued to assist her with those needs during the trip.
The Court rejected the Chicago Park District’s argument of reading an “ongoing-treatment requirement” into the definition of “care.” The Court emphasized that “so long as the employee attends to a family member’s basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part of ongoing treatment of the condition.” In rendering this conclusion, the Seventh Circuit departed with the First and Ninth Circuits, who have held that travel unrelated to medical treatment is not subject to the protections of the FMLA.
The Seventh Circuit noted that its reading of “care” does not open the door for FMLA abuses because the Ballard case occurred in the “hospice and palliative care context” and the FMLA still allows employers to require that any leave requests be certified by the family member’s health care provider. 29 U.S.C. § 2613.
It is also worth noting that although Ballard offers a fairly expansive interpretation of “care” under the FMLA, it by no means eradicates the other general requirements of eligibility under the Act. So, before employees start packing their bags and before employers cry foul over the breadth of the Ballard decision, a closer look at the case suggests that opportunistic leave-taking will not be treated as protected activity.
Many months ago, I posted about my shock and disappointment in learning that a number of states were passing legislation whose sole purpose was to prohibit future state-level legislation which would provide paid sick leave to employees. To read more about that, visit: http://blog.thecaselawfirm.com/2013/06/19/states-passing-preemptive-bills-to-prevent-passage-of-paid-sick-leave-laws.aspx?ref=rss. Considering that cynical trend in state legislatures, I cannot tell you how excited we are at The Case Law Firm to hear talk of pending federal legislation which would proactively provide paid sick leave to every employee, regardless of the size of her employer or the state in which she lives.
The Family and Medical Insurance Leave Act (or the FAMILY Act), would provide paid leave to employees who are suffering from serious health conditions or are caring for a sick child, spouse, parent or domestic partner. The Act would also provide leave related to pregnancy, childbirth and adoption. Like the FMLA, the FAMILY Act would provide for up to 12 weeks of leave. However, unlike the FMLA, the act would apply to employers of any size, no matter how small, and that leave would be paid. Employees would receive 66% of their normal wages while on leave up to a certain cap. That pay would be funded similarly to Social Security; it would require employers and employees alike to contribute two tenths of a percent of every dollar earned to a fund. This amounts to two cents of every ten dollars, or approximately $0.58 per week for an individual working 40 hours per week at the federal minimum wage. Those contributions would be pooled and, in aggregate, are expected to fund both the sick leave pay as well as administration of the Act itself, which would be housed within the Social Security Administration.
Polls show that paid sick leave is not only supported by the majority of citizens, but also by a growing majority of small business owners. This is not surprising given that research shows that paid sick leave is beneficial to employees, employers and the economy in general and that the two states that have introduced similar laws in the past ten years (California and New Jersey) have successfully implemented the laws. See: http://www.nationalpartnership.org/research-library/work-family/paid-leave/family-act-fact-sheet.pdf.
The FAMILY Act was introduced on December 12, 2013, but no progress has been made since that date. This Act would fill a huge gap in employment protections for low-wage workers – many of whom are not even entitled to unpaid sick leave without risking their jobs, let alone paid time off. Please contact your federal legislators ASAP and indicate your support.
With all of the celebrity and fanfare that surrounds professional football players it is, at times, hard to remember that they are employees just like the rest of us. Perhaps that explains the multitude of truly harsh and inappropriate reactions to the Richie Incognito controversy. For anyone who hasn't already heard the story, Miami Dolphins player Richie Incognito was recently indefinitely suspended after his former teammate Jonathan Martin, accused him of leaving voice messages and sending texts bullying him, calling him racially derogatory names, and threatening him.
Sadly, the reaction of many players, personnel and fans has been to attack and bad-mouth the alleged victim, rather than to take a stand against the accused. In the last two weeks I have seen quotes from Dolphins personnel stating that Jonathan Martin is “weak” and a “coward” and statements from players suggesting that Martin should “man up” and confront Incognito personally rather than “[telling] like a kid.” Some of the most disgusting criticism of Martin, however, comes from football fans and the general public. A quick review of online comments to articles about the story reveal fans calling Martin “soft” and derogatory terms that are too vulgar to include here, accusing him of “playing the race card,” and stating that “the more [they] read about Incognito, the more [they] like him.” See, for example http://sportsillustrated.cnn.com/nfl/news/20131104/nfl-personnel-question-jonathan-martin-richie-incognito/index.html; and http://espn.go.com/nfl/story/_/id/9946248/richie-incognito-held-offensive-line-meetings-strip-club.
I have been reading as much as I can and really trying to figure out where this animosity toward a player who was brave enough to report workplace harassment and bullying comes from. The best I can surmise is that we hear about big money contracts and read about the players' off-field antics so regularly that, when it comes down to it, we forget that they too go to work every week, are paid to produce, and spend a great deal of time in their offices - the locker room. These guys are employees and have to deal with workplace politics, policies, and laws just like everyone else.
Keeping that in mind, take a step back from the world of football and consider the allegations on their own. Incognito has been accused of threatening a coworker, bullying him, and calling him racial slurs. If one of our own coworkers (or even an employee at the local grocery store) engaged in that type of conduct, owe would be up in arms. The public backlash would fall upon the harasser, not the victim, and maybe even the employer if there were some allegation that it knew of the employee’s biases and turned a blind eye to the inappropriate conduct. But exactly the opposite seems to be happening here.
I’m not sure what precisely it is about celebrity or football culture that makes this alleged conduct seem acceptable. I acknowledge that football is inherently aggressive and that the culture of a locker room likely includes a good deal of rough and rowdy conduct. Even the federal courts acknowledge that workplace harassment laws were not put in place to police merely "boorish" behavior and that certain workplaces which are known to be rougher around the edges are given a little leeway in determining how offensive conduct must be before it rises to the level of unlawful. But certainly even in the roughest of workplaces, we should not be excusing an employee’s use of the most blatant racial slur in the history of this country. Nor should the idea that "boys will be boys" allow one employee to direct pointed and hateful comments toward another employee in a fashion that amounts to a threat.
The conduct that Richie Incognito has been accused of is simply not the kind of inappropriate workplace banter that should be excused in a court of law or in the court of public opinion. Indeed, it is precisely the kind of criticism that is being lobbed at Jonathan Martin which intimidates other victims of workplace harassment from making complaints of their own. If we are going to have any chance of putting this kind of harassment to an end, we need to stop excusing away conduct that is obviously reprehensible; but more importantly, we need to stop vilifying the people who are brave enough to stand up and say they've had enough.
Today marks the 50th Anniversary of Martin Luther King, Jr.’s “I Have a Dream” speech. Crowds gathered on the National Mall in Washington, D.C. to hear remarks from President Obama along with other, prominent figures such as Former Presidents Bill Clinton and Jimmy Carter and celebrities like Oprah Winfrey. People from around the country commemorated today by ringing bells from churches, schools, and historical monuments at 3:00 p.m. eastern, during the hour when King delivered his famed speech. King’s momentous speech played a key role in mustering political support for the passage of the Civil Rights Act of 1964.
During this 50th anniversary of King’s “I have a dream speech,” we cannot help but reflect on the status of equality in this country. It is undeniable that we have made great strides toward realizing equality. However, on a grassroots level, as civil rights attorneys practicing in employment law, we see first-hand that there is work yet to be done. Even though it often manifests in more subtle and cunning ways, discrimination of all different sorts – race, gender, family responsibility, national origin, age, religion, sexual orientation – persists at home, within the community, and in the workplace. We continue to await the day when discrimination lawsuits no longer become necessary because we as a society have learned to practice the ideals set forth in King’s speech. For now, however, we can at least be grateful that we have evolved to the extent that our legal system allows those aggrieved by discriminatory acts to assert their rights and seek recourse, albeit usually monetary recourse.
For a transcript of King’s “I Have a Dream” speech, visit http://www.americanrhetoric.com/speeches/mlkihaveadream.htm.
I just wanted to drop a quick line to say how excited we are that ENDA has been passed out of committee by an overwhelming majority (15 to 7, including at least two Republican supporters). ENDA is short-hand for the Employment Non-Discrimination Act which aims to make discrimination on the basis of LGBT status unlawful.
Now comes the hard work in getting it 1) passed in the Senate, and 2) even more daunting, passed in the House. There is word of bipartisan support in the Senate that would be enough to oppose a filibuster. The House, as usual these days, is another story. Either way, please do what you can to lend your support to this incredibly important (and incredibly delayed) piece of legislation. Call, write, visit your legislators and let them know how important is for this country to make it clear that discrimination on the basis of sexual orientation will not be tolerated.