Tag: Employers

The Americans with Disabilities Act: Employers Must Engage in the Interactive Process

A recent 7th Circuit Court of Appeals decision emphasizes the steps an employer must take to accommodate an employee with a disability.  The American’s with Disabilities Act (“ADA”) is a federal statute that applies to any employer of 15 or more employees.

In Eymarde Lawler v. Peoria School District No. 150, a teacher (“Lawler”) with PTSD was hired by School District 150 (the “School District”) and worked without incident for 4 years.  Lawler’s PTSD symptoms began to manifest in 2010.  She was initially given a leave of absence, and then transferred to a school for students with emotional and behavioral problems.  Lawler had no prior experience teaching children with severe behavioral problems but never-the-less earned a satisfactory rating after the first year.  The following year, after several stressors in and out of school (including witnessing the aftermath of a shooting and being concussed by a student), Lawler’s psychiatrist opined that the events had retriggered her PTSD and that Lawler should be transferred away from such a stressful environment.

The School District refused the transfer request, instead performing an accelerated review that labeled her job performance unsatisfactory and terminating her.  Lawler sued for, among other things, failure to accommodate her PTSD under the Rehabilitation Act.  The Rehabilitation Act requires the same analysis as the ADA.

Under the ADA, the employer (and the employee) must engage in the “interactive process” to find a reasonable accommodation for the employee’s disability.  After the request from Lawler (supported by a psychiatrist’s professional opinion) for a transfer to a less stressful environment, the school district was required to make a reasonable effort to explore possible accommodations, such as looking for open positions in other schools or reducing the number of students with behavioral or emotional disorders in Lawler’s classroom.

In this case, the facts in the record suggest that the School District made no attempt to look for another position for Lawler.  “The school district simply sat on its hands instead of following-up with Lawler or asking for more information.”  The court vacated the summary judgment award initially granted to the School District and remanded the matter for trial.

It is vital that employers covered by the ADA take employee requests for disability accommodation seriously and explore available options.  By failing to engage in the interactive process, the School District now faces the prospect of liability for failure to accommodate Lawler’s disability.

If you have any questions regarding an employer’s responsibilities or an employee’s rights under the Americans with Disabilities Act, please contact:

Robert Cooper at:

rcooper@lgattorneys.com or (312) 368 0100.

Guidelines for Non-Competition Clauses in Employment Contracts

Employment contracts with non-competition clauses are quite common.  But employers must not go too far in restricting the activities of former employees.  If they do, courts will not enforce the post-employment restrictions.

Recently, an Illinois court struck down covenants in an employment agreement that an employer tried to enforce because the restrictions went beyond what was necessary to protect a legitimate business interest of the employer.

In Assured Partners, Inc. v. Schmitt, 2015 Ill. App. (1st) 141863 decided October 26, 2015, the defendant, Schmitt, had been employed by ProAccess, a subsidiary of Assured Partners, Inc.  After he resigned, his former employer sued him, asking for money damages and an injunction.  The employer lost.

The employment agreement Schmitt signed prohibited him from competing with his former employer “anywhere in the United States or its territories” for a period of 28 months even though he had worked for ProAccess for only 20 months.  It also contained a confidentiality clause prohibiting Schmitt from disclosing any information or observations he made about ProAccess’ business while employed.

The court refused to enforce the non-compete clause because it was too broad saying it prevented Schmitt “from working as a broker, in any capacity, within the entire universe of professional liability insurance business anywhere in this country.”

It also refused to enforce the confidentiality clause because it was far too broad saying, “Illinois views post-employment restrictive covenants that insist on absolute secrecy of any and all information as unreasonable and unenforceable because a person is allowed to make a living, and cannot possibly not utilize any information from his past job.”

Notably, the court did not discuss or consider Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327, which holds that a minimum of two years of continued employment is necessary to establish adequate consideration for a restrictive covenant.  Given that Schmitt worked for ProAccess for only 20 months (less than two years), the court arguably could have dismissed Schmitt’s claim on the basis that there was insufficient consideration to support the post-employment restrictive covenant.

The takeaway for employment contracts is:

  1. post-employment restrictions should (a) be limited to protecting the legitimate business interests of the employer, and (b) not impose an undue hardship on the employee; and
  2. the time period and geographic area in which the restrictions apply must be reasonable.

To discuss employment contracts or a non-compete issue you have, please contact:

Michael Weissman at:

mweissman@lgattorneys.com or (312) 368-0100

or

Mitchell S. Chaban at:

mchaban@lgattorneys.com or (312) 368-0100

New Cook County Wage Theft Ordinance Applicable to Cook County Employers as of May 1, 2015

On May 1, 2015, employers in Cook County will be subject to the new Cook County Wage Theft Ordinance that imposes harsh penalties on employers who violate federal or state wage laws. The purpose of the Ordinance is to protect employees from wage theft and prohibits companies and individuals found to have violated wage-payment laws from obtaining Cook County procurement contracts, business licenses, or property tax incentives for a period of five years.

An employer will face penalties under the Ordinance if it has admitted guilt or liability, or has been adjudicated guilty or liable in any judicial or administrative proceeding, of committing a repeated or willful violation of the Illinois Wage Payment and Collection Act, the Illinois Minimum Wage Act, the Illinois Worker Adjustment and Retraining Notification Act, the Illinois Employee Classification Act, the federal Fair Labor Standards Act, or any comparable state statute or regulation that governs the payment of wages.

The Ordinance applies not only to business entities, but to any “person”, including a “substantial owner” or an employer. A substantial owner is defined as any person who “owns or holds a 25 percent or more percentage of interest in any business entity seeking a county privilege, including those shareholders, general or limited partners, beneficiaries and principals; except where a business entity is an individual or sole proprietorship, substantial owner means that individual or sole proprietor.”

Penalties under the Ordinance include:

  1. Ineligibility for County Contracts:  The employer will be ineligible to enter into a contract with Cook County for a period of five years from the admission of guilt, date of conviction, entry of a plea, or finding in a judicial or administrative proceeding of a violation of a wage-payment law.
  2. Ineligibility for Property Tax Incentives: The employer will be ineligible to receive any property tax incentives for a period of five years from the admission of guilt, date of conviction, entry of a plea, or finding in a judicial or administrative proceeding of a violation of a wage-payment law.
  3. Ineligibility for a Cook County Business License: The employer will be ineligible to receive a Cook County business license for a period of five years from the admission of guilt, date of conviction, entry of a plea, or finding in a judicial or administrative proceeding of a violation of a wage-payment law.

Employers who are subject to the above listed penalties may request an exception to the applicable period of ineligibility by submitting a written request to the County. Such exceptions may be granted by the County if the County finds that the exception is in the best interest of the County.

Employers in Cook County should review their wage payment policies to ensure that they are in compliance with all applicable federal and state wage-payment laws.

If you have any questions or concerns regarding the Cook County Wage Theft Ordinance or your business’s wage payment policies, please contact:

Kristen E. O’Neill at:

koneill@lgattorneys.com or (312) 368-0100

REMINDER: New Illinois Law Limits an Employer’s Ability to Inquire Into Job Applicant’s Criminal History

The Illinois “Job Opportunities For Qualified Applicants Act”, which took effect on January 1, 2015, prohibits employers from inquiring about or into, considering, or requiring disclosure of the criminal record or criminal history of an applicant on a job application. In passing the Act, the Illinois legislature found that “it is in the public interest to do more to give Illinois employers access to the broadest pool of qualified applicants possible, protect the civil rights of those seeking employment, and ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly.” The Act applies to all employers with 15 or more employees. The Act specifically excludes three types of employers: (i) employers required by federal or state law to exclude applicants with certain criminal convictions; (ii) employers that require a standard fidelity or equivalent bond where one or more specific criminal convictions would disqualify the applicant; and (iii) employers that employ individuals licensed under the Emergency Medical Services (EMS) Systems Act. An employer may inquire into an applicant’s criminal background only after an applicant has been deemed qualified for the position and notified that he has been selected for an interview, or, if there is not an interview, only after a conditional offer of employment is made to the applicant. Employers that violate the Act are subject to civil penalties imposed by the Illinois Department of Labor. The Act does not, however, create a private cause of action for aggrieved job applicants.

To discuss any questions you may have about the effect of the Job Opportunities for Qualified Applicant Act on your business or how you can revise your employment policies to comply with the Act, please contact:

Kristen E. O’Neill at:

(312) 368-0100 or koneill@lgattorneys.com.

testimonials

"We've worked with Levin Ginsburg since the 1980s...we have grown with them and have a very high level of comfort and confidence with this firm." Jay Nichols, President,
Badger Murphy
"What has impressed us most about Levin Ginsburg is that they are smart lawyers. They offer fresh perspectives and fresh insights into issues."
Walter E. Smithe III, Tim Smithe, and Mark Smithe,
Walter E. Smithe Custom Furniture
"Astute, responsive and practical. Those are three reasons why we work with Levin Ginsburg." Bryan L. Oyster, V.P. and General Manager,
Bentley Forbes