We cannot express how truly disappointed we are in the Obama administration’s failure to protect LGBT individuals’ rights to a discrimination-free workplace. 

In early 2009, we were excited to read that President Obama’s employment law agenda included a focus on LGBT employees and explicitly promised to push for passage of the Employment Non-Discrimination Act (ENDA), a proposed federal statute which would afford LGBT employees the same protections from discrimination in the workplace as women, disabled and older individuals (to name just a few protected categories).  However, since taking office, President Obama has done little to advance that goal.  Instead, ENDA, which has been languishing in Congress for almost twenty years now in one form or another, remains un-passed. 

Then, just a week ago, President Obama refused to sign an executive order which would have prohibited federal contractors from discriminating against LGBT employees.  Significantly, while campaigning for President in 2008, Mr. Obama stated that he would support the repeal of a 1953 executive order issued by President Eisenhower which explicitly prohibited federal contractors from hiring gay employees.   However, now, rather than making good on that claim, President Obama has refused to sign an executive order doing just that and has stated that he now believes it is more appropriate to wait for Congress to take action on this issue.    

In a time when Mr. Obama has signed numerous executive orders under the mantra, “We can’t wait” – indicating that he will take action via executive orders where Congress refuses to take the necessary actions itself – it is unbelievable that President Obama has refused to take this step to protect LGBT employees in one small area of the workforce, an area which is arguably directly under the President’s control – federal contractors. 

To make matters even more frustrating, I recently noticed in my Facebook feed that the President has published a chart showing what he refers to as the “three years of progress” he has made for the LGBT community.  While there is no argument that the repeal of “Don’t Ask, Don’t Tell” was a big step forward, it is infuriating that he chose this moment to tout his support for the LGBT community after so recently indicating his unwillingness to stand up for their rights in the workplace. 

In this day and age, when workplace discrimination (although it remains fairly rampant) has clearly been held to be unlawful and unpopular, it is infuriating that the President cannot at least take incremental steps to protect LGBT employees from that fate.

The Patient Protection and Affordable Care Act is best known as President Obama’s effort to overhaul the American health care system.  However, amongst its many provisions, the law created an obligation on employers to provide time and space for nursing mothers to express breast milk. 

The law specifically requires that any employer with fifty or more employees provide working mothers a reasonable break every time they need to pump breast milk for one year after giving birth.  Additionally, the employer must provide a private space, other than a bathroom, for this purpose.

While the Act was first signed into law in March of 2010, the Department of Labor has been wrestling with creation of rules and regulation for its enforcement for the last two years.  Thankfully, despite that holdup, the Department has recently begun to enforce the law.  Indeed, the DOL has issued 23 citations already against companies, including Dillard’s, Dollar General, Starbucks and McDonald’s, for failing to provide adequate time and/or space for working mothers to pump breast milk.  These citations have resulted in fines, awards of back pay, and agreements from employers to comply with the law moving forward.    

While the DOL continues to work on its final rules for enforcement, these recent citations are a good reminder to employers that the law is in effect and must be followed regardless. 

To read more about this issue, visit the following link: http://lifeinc.today.msnbc.msn.com/_news/2012/01/04/9922427-breast-feeding-at-work-now-protected-by-law.

Illinois law-makers have proposed important legislation to ensure that gay and lesbian couples in civil unions possess the same legal entitlement to take up to 12 weeks of unpaid leave from work to care for a child, parent, or spouse with a serious health condition as married couples already possess under the federal Family Medical Leave Act.  Click below if you have any interest in supporting this significant step forward in civil rights: 

http://action.aclu.org/site/MessageViewer?dlv_id=89302&em_id=86883.0

Author: Kendra Kutko, Associate Attorney at The Case Law Firm, LLC

            In an employment climate where non-competition agreements, non-solicitation agreements, and other restrictive covenants have become rather standard mechanisms that allow employers to protect their economic interests, the rising number of employees who sign these agreements as a condition of hire must confront the unsavory possibility that they may one day face a lawsuit when they decide to leave those employers in pursuit of other job opportunities.  Indeed, our practice has seen a marked increase in cases where employers have filed suit against former employees, alleging breaches of such agreements.

            The task of defending against these types of employer-initiated legal actions entails extensive time and cost for employees who often have modest resources.  However, in one of our recent cases, we obtained a great decision by the Circuit Court of Cook County, Illinois that should provide optimism for employees who currently remain bound by restrictive covenants and should provide pause to employers who may contemplate filing suit over these agreements.

            In TriNet International, LLC v. Synchronous Solutions, Inc. et al., No. 2011 L 005526, the employer filed a third-party complaint against its former employee for breach of contract, breach of fiduciary duty, and tortious interference with contract after the employee left the company to pursue another career opportunity.  The employee had signed an employment agreement with the employer, which contained a non-solicitation provision and a non-competition provision.  All causes of action filed against the employee derived from the employer’s “information and belief” that the employee allegedly “solicited” the employer’s client and “intentionally and purposefully induced” the employer’s client to terminate its business relationship with the employer so as to steal that corporate opportunity for the employee’s own financial benefit.  The employee adamantly denied these allegations, but most significantly, the employer presented no facts in support of these allegations.  

            The employee subsequently moved to dismiss the third-party complaint in its entirety, arguing that the employer presented mere conclusions of fact and law without providing any detailed factual underpinnings with which to support its causes of action such that the third-party complaint remained deficient under Illinois fact-pleading standards.  In ruling on this motion, the Circuit Court determined that the employer’s allegations against the employee lacked sufficient factual specificity to meet the Illinois fact-pleading requirements.  Consequently, the Circuit Court granted the employee’s motion to dismiss.  (1/12/12 Order Granting Third-Party Defendant’s Motion to Dismiss Third-Party Complaint, Bartkowicz, J.).     

       
             Although it seems unlikely that employers will shy away from filing suit against employees over restrictive covenants any time soon, the TriNet decision provides some reassurance that, at least in the Illinois courts, an employer must have more than its own speculation or “information and belief” that the employee engaged in wrongful conduct before doing so.

After ten years of successful employment, Sharon Smiley was fired from her job as a receptionist for a local real estate agency, incredibly, for working too hard.  Her workload had become increasingly heavy and, as a result, she decided to work through her lunch break.  She knew her employer’s policy required that she clock out for lunch and so she did.  Reasonably believing, however, that once she clocked out what she did with her time was her business, she sat at her desk and continued to work on a special project a supervisor had assigned her that morning.  She had not planned on eating, and thought she would use her time to get the project done. 

Ms. Smiley’s supervisor asked her to leave her desk but Ms. Smiley refused, explaining that she knew she could not eat her lunch at her desk, but she was not eating.  Ultimately, the company terminated Ms. Smiley’s employment for insubordination and contested her right to obtain unemployment benefits. 

The Illinois Department of Employment Security sided with the employer and held that Ms. Smiley’s insubordination amounted to misconduct, denying Ms. Smiley benefits.  Representing herself, she appealed that decision three different times internally, but was ultimately unsuccessful. 

Finally, Ms. Smiley appealed her case to the Circuit Court of Cook County, which overturned the decision denying her benefits and, in January of 2012, the Illinois Appellate Court for the First District affirmed that decision.  The Courts’ decisions confirmed what the rest of the world knows is basic common sense – attempting to work through lunch, even if in violation of company policy, is not willful or wanton misconduct indicating a disregard for the employer’s interests. 

While I understand that Illinois is an at-will employment state and that the employer was allowed to terminate Ms. Smiley’s employment for any reason at all (so long as that reason was not discriminatory or otherwise unlawful), the notion that an employer would terminate a long-term, hard-working employee for attempting to go above and beyond by completing a project on her own time really angers me.  But the fact that her employer chose to contest her right to unemployment benefits after it terminated her for working too hard simply shocks the conscience – especially given the economic climate of the last few years and the dearth of employment opportunities out there. 

My hat’s off to Sharon Smiley for having the courage and conviction to call her employer on its wrong-minded efforts to deny her benefits.  Congratulations on a hard-fought win!

To read more about Ms. Smiley’s story, visit: http://abcnews.go.com/Business/chicago-woman-fired-skipping-lunch-wins-unemployment-benefits/story?id=15370896&page=2

The Case Law Firm, LLC

250 S. Wacker Drive, Suite 230

Chicago, IL 60606
(312) 920-0400
ksedey@thecaselawfirm.com

            The IRS has recently implemented a program called the “Voluntary Classification Settlement Program” (“VCSP”).  The program allows eligible employers to pay a small sum in order to obtain partial relief from federal employment taxes for previous mischaracterizations of workers as “independent contractors” when such individuals should have received classification as “employees.”  The announcement of this program undoubtedly marks a positive development for employers who have engaged in this type of mischaracterization and who now wish to reduce their tax liability and avoid IRS audits.  However, from an employee perspective, the fact that this sort of misclassification remains so frequent and widespread that the IRS has found a need for such a program in the first place educes a timeless question in employment law: why does the distinction between “independent contractor” versus “employee” even matter?

            
            The implications of whether you constitute an “employee” versus an “independent contractor” are immense.  Namely, only qualified “employees” are entitled to statutory protection under such legislation as Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Age Discrimination in Employment Act (“ADEA”), the Fair Labor Standards Act (“FLSA”), the Illinois Workers’ Compensation Act, the National Labor Relations Act (“NLRA”), and the Employee Retirement Income Security Act (“ERISA”). 

           
            Each statute has its own definition of qualified “employee.”  In general, the employer’s decision to simply label an individual as an “employee” or “independent contractor” will not serve as the dispositive factor for determining that individual’s employment status.  Instead, courts use a number of different tests depending on the particular statute at issue to determine whether someone meets the precise, legal definition of “employee.”  Each of these tests relies on a variety of factors.  However, an employer’s decision to label someone as an “independent contractor” can indeed impose practical and legal hurdles for an individual attempting to gain protection under an employment statute.  In short, the determination of whether someone constitutes an “employee” or an “independent contractor” can be a complex and nuanced exercise.  Nonetheless, qualifying as an “employee” under a particular statute can often mean the difference between having legal recourse against your employer and having none.  Hence, the distinction between “independent contractor” versus “employee” matters a great deal.  The emergence of the IRS’s VCSP program stands as yet another reminder of that fact.