Current Employment

Illinois Court: Wage & Hour Settlements During Class Certification Are Invalid

Tim Eavenson — Tue, 06 Jul 2010 19:14:24 +0000

In a matter of first impression here in Illinois, the First District Court of Appeals has held that settlements and releases of wage-and-hour claims, obtained from individual employees while a petition for class certification is pending, are void as a matter of law (decision here).

The Plaintiff had sought class certification in a wage-and-hour suit against her employer, Giordano’s Enterprises, over a $0.25-per-hour deduction used to cover employee meals. The Plaintiff wanted two separate classes certified – employees who were paid below minimum wage after the deduction, and employees who still received more than minimum wage after the deduction. The Defendant asked the court for additional time to respond, claiming they wanted to negotiate settlement.

During the court’s extension, the Defendant executed some 350 settlement and release agreements with individual employees. The settlements released the company from the wage claims in exchange for $10. When the Plaintiff learned of the releases, she moved the court to enjoin the Defendant from executing any additional settlements, and to void the already-obtained agreements as against public policy. The court granted the injunction, and certified the question of the settlements’ validity for interlocutory appeal.

On appeal, the court noted that the Wage Payment Act itself states that payment of minimum wage is a matter of public policy, and that any contract that results in less-than-minimum wages is void. The Act also requires employers to pay employees all wages not in dispute, and that acceptance of a paycheck can’t be tied to release of wage claims. Thus, the Act itself prohibited the settlements signed by any member of the putative “below-minimum” class.

As to the other class – those who still received more than minimum wage after the $0.25 deduction – the court looked to Federal courts’ interpretation of the FLSA for guidance. Though there are exceptions, the court noted a steady line of cases prohibiting private settlements of wage claims. The reasoning was transferrable to Illinois – the legislature’s determination of a public right to minimum wage payment meant that the right cannot be waived.

Finally, and most importantly, the court held that all the settlements were void because the Plaintiff had already petitioned for class certification. Illinois courts have long held that, where a class hasn’t been certified yet, the Defendant can execute settlements with individuals who would eventually be members of the class. However, no court in the state had ever dealt with settlements executed while a petition for class certification was pending. The court of appeals held that a trial court has a duty to protect the interests of a putative class, and the legitimacy of the judicial process, and that this duty was affected by the Defendant’s attempts to settle with members of the class. As a result, the court of appeals held that any releases signed by members of a putative class while a petition for certification is pending are void as a matter of law.

It will be interesting to see how the Defendant’s specific actions in this case – asking the trial court for an extension so it could “negotiate settlement”, not notifying either the Plaintiff or the court of its intentions, offering a blanket sum of $10 rather than negotiating individual claims, etc. – affect the trajectory of this decision’s precedent. Future courts could limit the holding to circumstances where the defendant tried to deceptively execute releases, or it could stand on the holding as it reads – that any release executed while a motion for class certification is pending is outright void.

Either way, for now the message is clear: In Illinois, everything changes when that petition to certify is filed.

James Peters, Success.

Tim Eavenson — Fri, 25 Jun 2010 22:09:00 +0000

In internet terms, I disappeared for all of last week. No blawg, no Twitter, no Facebook. Full radio silence. It was not laziness. Or business.

On June 12, my 86-year-old grandfather died. We shared a birthday. He was one of the few living men I would call a hero. So last Monday, I set my office in order, giving the externs enough work to get them through the week and trying in vain to clear my desk. On Tuesday, I left with my brother, my wife and our 2-year-old son for Clinton, Mississippi, where my grandparents moved in 2005 following a suggestion from mother nature.

I wasn’t going to write about him. It’s obviously a personal thing, and I didn’t want to trivialize his life by making it a teaching tool or something. But the experience of the funeral and my family’s shared memory of him has been stuck in my mind ever since, so I feel compelled to share.

My Grandaddy James grew up in Mashulaville, Mississippi. He left college unfinished to serve in Patton’s Army in World War II, and came home to work as a mechanic. Not long thereafter, he went to work for the Postal Service as a letter carrier in Jefferson Parish, just outside of New Orleans.

He worked hard. At his funeral, someone said “Jim didn’t just know every street in Jefferson Parish, he knew how to pronounce them all…” (no small feat in the Nawlins suburbs). After some years working as a mailman, he moved into the mechanics department. He worked. By the time he retired, he’d been given a job working with architects to design the mechanics for future post office buildings.

When he wasn’t working, he worked. Someone else told a story that, when she was a kid, my mom bought a broken radio at a church fund raiser. When the seller pointed out the radio’s condition, my mom didn’t skip a beat. “Don’t worry about it,” she said. “My daddy can fix anything.”

And he did.

My grandparents’ minister said that, when he first started at the church, my grandaddy was introduced to him as “the one who knows how the whole building works.” He knew the light switches, speaker controls, doorkeys, kitchen appliances. When the church bought a bus, he went to the DMV to get certified to drive it. When it was suggested that the Bible/Hymnal holders be replaced, my grandaddy designed new ones – down to the color and head-style of the screws – and then manufactured over 100 of them. By himself. In his backyard.

After the Hurricane, the minister spent a few harried weeks nearly alone at the church, trying to get utilities and services restored. There was damage. When my grandaddy came home, he went to the church to see what he could do. The minister started rattling off a laundry list of problems and broken things. Mid-rant, without a word, my grandaddy just walked out on the exasperated pastor.

“Two hours later,” the minister said, “James Peters walked back into my office and every one of those problems had been fixed.”

Why am I writing about this? Well, for one, my Grandaddy James was a man of the best sort – happy, genuinely, in a way that made you happy to be around him. Hardworking. Loved his family. Had convictions. And there aren’t enough places where men – real, everyday men – can be celebrated. So I’m celebrating.

But there’s something else. That thing that’s been gnawing at me the past week or two. For my entire life, I have been inundated with the notion that “no one reaches the end of their lives and wishes they’d spent more time at work.” I’ve heard it from public speakers, blogs, blawgs, classmates, teachers, pretty much everyone who ever wanted to make a point about “balance”.

Well, I don’t know what my Grandaddy James is thinking about right now. I doubt he wishes he’d spent more time at work. But I know he doesn’t wish he’d spent less time there, either.

To my grandfather, his skill with building things, fixing things, knowing how they worked, it touched every part of his life. He used it when he felt called to, by his country, his church or his family. It fed his children and fixed their radios. It led him from the army to a mail route, to the truck, and then to the attention of learned men with degrees and money. It afforded him the respect of his pastor and his friends.

His work was not his job. His job was not his life. They didn’t balance – it didn’t work that way.

Before this trip, I didn’t know what exactly my grandaddy did. When I got to Mississippi, I asked my mom and dad and my grandma. You should’ve seen them talk. They were so proud of his ascension at the P.O., his military service. About where he was able to get to from a little house in Mississippi with no running water.

My Grandaddy James – grunt, mailman, mechanic, father, husband, artisan, bus driver – was a smashing success.

And it occurs to me, thinking of my grandfather’s life, that whatever abilities I’ve been able to develop are not supposed to just make me a better lawyer, or a better writer or public speaker, or even to make me a lot of money. They exist to make me a better man. No matter where I am – home, office, anywhere – I hope I am using what I’ve got to use. I hope I am at work.

And when I am gone, I hope my family is as proud of my work – writ large – as I and my family are of my grandfather. It is an essential part of a life so greatly lived.

New FMLA Insights Blog

Tim Eavenson — Thu, 24 Jun 2010 21:34:45 +0000

I just wanted to write a quick note to welcome labor & employment attorneys Jeff Nowak and Bill Pokorny to the blawgosphere, and to point you to their new blog, FMLA Insights.

Jeff is a trusted source on labor and employment law in general, and a veritable expert on FMLA issues.

The blog already has posts up on the new Administrator’s Interpretation extending parental leave to gay partners, analysis of case law and pending legislation, and even podcasts. There’s even some reassurance for employers about the new FMLA regs.

If you or your business ever have to deal with the the Family Medical Leave Act, you should add this site to your RSS list now. I have.

DOL Extends Parental FLMA Rights to Gay & Lesbian Couples

Tim Eavenson — Wed, 23 Jun 2010 04:31:48 +0000

The Department of Labor’s Wage and Hour Division has issued an Administrator’s Interpretation extending the right to parental leave under the FMLA to the partners of gay and lesbian parents.

The interpretation focuses on language in the FMLA that allows eligible employees 12 weeks unpaid leave to bond with or care for “a son or daughter”. The Act defines “son or daughter” as a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis….”

That last little bit of Latin means anyone who has day-to-day responsibilities for a child, but hasn’t gone through a formal process to legalize a parental relationship. This definition exists regardless of the existence or presence of the child’s biological parents.

So, the Administrator says:

“an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”

It’s important to note that, while the granting of same-sex rights is clearly the lead story here, this interpretation has many more implications for those caring for children. Other examples the Administrator gives include:

A grandparent that has assumed ongoing responsibility for a grandchild;
An aunt assumes responsibility for raising neices and nephews following the death of the children’s parents;
Any employee sharing responsibilities equally with the child’s biological parent (including live-in, long-term girlfriends/boyfriends, presumably).

New SCOTUS Arbitration Opinion: Both Boring & Important

Tim Eavenson — Tue, 22 Jun 2010 18:56:14 +0000

Yesterday, the Supreme Court issued an opinion in Rent-a-Center, West, Inc. v. Jackson, a boring case about a very wonky area of employment law. So let’s talk about it.

The case is basically about arbitration agreements between employers and their employees. But that makes it sound way more sexy than it actually is; the case is really about whether a court can analyze an arbitration agreement where the agreement specifically grants the arbitrator the exclusive right to decide the legitimacy of or otherwise interpret the agreement’s terms.

The Court held that, where a party wants to assert a contract defense against an arbitration agreement’s delegation of specific rights to the arbitrator, the litigant must challenge that specific provision of the arbitration agreement, and not the agreement as a whole. Since Jackson challenged the arbitration agreement as a whole, the issue should have been left to the arbitrator under the terms of the agreement.

Still with me? Good. Now, that boring topic above is really interesting to me, and to many other labor and employment lawyers who get excited about the intricate procedural details of bringing employment claims. But I think we can all agree that it’s not the kind of SCOTUS opinion that makes the front page of the New York Times.

What’s interesting to me is how my fellow L&E blawgers have used the case to make very practical or helpful notes for their potential clients. To wit:

The opinion is, arguably, very good news for employers who want air-tight arbitration agreements that will keep them out of court. But Jon Hyman at Ohio Employer’s Law Blog reminds employers that being able to do something doesn’t always mean you should. Recent studies have called into question whether mandatory arbitration is really saving businesses any money at all.
At Jottings by an Employer’s Lawyer, Michael Fox puts the opinion in political perspective, and explains why it may not be such a great thing for employers after all. If his dead-on prediction of Sen. Leahy’s response to the opinion is any indication, this may lead to legislation that swings the pendulum much farther toward the employee than was the case yesterday.

Both these posts are worth reading, whether you’re into meta-analysis of arbitration agreements or not.

Autism Research Shows GINA’s Importance

Tim Eavenson — Thu, 10 Jun 2010 19:51:52 +0000

Photo by gravitywave (flickr)

Yesterday, the Autism Genome Project released the results of the largest study to date into the links between genes and autism. The results showed a correlation between the location of certain genetic variants – errors in DNA, essentially – and symptoms of autism spectrum disorder. This is how the Autism Speaks press release put it:

[T]he AGP reported that individuals with autism tend to carry more submicroscopic insertions and deletions called copy number variants (CNV) in their genome than controls. Some of these CNV appeared to be inherited, while others are considered de novo, or new, because they are found only in affected offspring and not in the parents. Taken together, more of the CNVs disrupt genes, previously reported to be implicated in intellectual disability without autism or in autism, than expected by chance.

Got that? No? Well, lucky for you Nature, the journal that published the study, has a blog to help explain empirical results in layman’s terms. Here’s how they put it:

[Researchers] found that autistic people did not have more rare copy-number variants than those without the disorder, but their variants were more often found within genes rather than in the vast amount of DNA located between genes. Specifically, 20% more genes contained a rare copy-number variant in autistic participants in the study. And among genes previously linked to autism spectrum disorder or intellectual disability, 70% more of them contained a rare copy number variant.

Deletions in one region of the X-chromosome, called the DDX53-PTCHD1 locus, were associated with a three-fold higher risk of autism spectrum disorder.

Still confused? Don’t sweat it, it’s a confusing issue. Both of the sources I just quoted make that point, too – that the issue of genetics and autism is nowhere near fully understood, including how these genes react with the environment.

Why am I talking about this? Well, the point of the research, of course, is to find some new treatment for the disorder, including genetic testing for early detection. Here’s one of the researchers (via WebMD):

“I can imagine a day when one can identify the specific genetic risk that led to an individual child’s autism, and then using that genetic information to say what pathway has been affected and then choosing a medical intervention.”

This would be phenomenal, of course. But it showcases how important the new Genetic Information Nondiscrimination Act may soon become. As studies like this one continue, more and more diseases and disorders will be linked to genetics, and testing for future medical issues is likely to become commonplace among doctors. GINA’s purpose is to keep genetic information private, and keep even well-intentioned employers – who don’t understand those science quotes above any more than we do – from using that information in employment decisions.

There will be moral and ethical decisions we’ll all have to make about how much knowledge we want about ourselves and our family members. And often, we’ll have to make those decisions without fully understanding what the results of such tests really mean. It’s telling how a study as nuanced and intricate as this autism study clearly was can be reduced to headlines like “DNA sweep reveals new autism genes“.

To the extent GINA keeps information like this from being used to discriminate against employees, it may become the ADA of the 21st century.

Obama +1 – What’s Changed?

Tim Eavenson — Tue, 08 Jun 2010 14:00:08 +0000

I attended a talk recently called “Obama Plus One” – an analysis of the employment law changes occurring since the new administration took office. The presentation was by two attorneys – Jeff Nowak, a partner at management-side employment firm Franczek Radelet, and Lori Deem, an employee-side attorney with Abrahamson Vorachek & Levinson.

Both attorneys agreed that the answer to what’s happened since Obama took over is, kind of surprisingly, “Not much.”

While President Obama seemed to start strong – the Ledbetter Act was the first law he signed – employment law dropped quickly and precipitously from the agenda, as national interest became laser-focused on the economy and healthcare.

Deem (the Plaintiff-side attorney) thought that a slow-down on the pace of employment changes was good. Our jobs are so integral to our lives, and the public needs time to absorb workplace changes as a result.

The major changes the two attorneys saw in the past year or so are:

1. The Ledbetter Act

The law named after the Plaintiff in a Supreme Court opinion clamping the statute of limitations in discrimination cases to the time the original decision was made. The law makes it so the statute of limitations is “reset” every time that initial decision (e.g., discriminatory pay between women and men) affects the plaintiff (e.g., every time she gets a paycheck).

Both noted that the Supreme Court was about to weigh in on the Ledbetter Act for the first time in Lewis v. City of Chicago. Also, a note for employment lawyers: EEOC regulations on the Ledbetter Act are expected to be released for comment this fall.

2. GINA

The Genetic Information Nondiscrimination Act. The law (and the EEOC regulations clarifying it) make it unlawful for an employer to obtain or use “genetic information” about its employees or their family members in a discriminatory manner. By protecting employees from discrimination, GINA is meant to facilitate genetic testing for predisposition of certain diseases, and for greater research into genetic sources of health issues.

Two of the exceptions the EEOC gives to employers who seek genetic info gave Deem pause: first, if an employer has a voluntary wellness program, they can obtain GI. Deem saw an opening for employers to start “voluntary” programs that were really offers employees couldn’t refuse, resulting in GI being obtained where it really shouldn’t. Second, the EEOC regs exclude GI obtained during an employer’s certification of FMLA leave. Since certification info usually sits in an employee’s personnel file (a no-no under GINA), Deem sees the possibility that the information will get spread where it shouldn’t.

On the employer-side, Nowak is concerned about well-meaning managers creating potential liability for their companies simply by asking a subordinate about an illness or a sick family member. He’s worried the law will discourage compassion and friendliness between bosses and employees even more than current laws already do.

3. Whistleblower Changes

Lost in the sea of the Stimulus bill last year was a provision granting sweeping protection to whistleblowers at organization receiving stimulus funds. The speakers noted that, unlike Sarbanes-Oxley whistleblower rules, the Stimulus Act protects anyone making internal or external complaints of gross mismanagement or abuse of authority with regard to stimulus funds, wherever the whistleblower has a “reasonable belief” of retaliation. Also unlike SOX rules, the whistleblower has a right to a jury trial, and only has to prove that the complaints were a “contributing factor” to the discrimination they suffered. Broad, indeed. The healthcare bill contains similar language, and went even further by amending the Qui Tam laws to keep the person’s identity secret while the lawsuit is pending. That should encourage a few more people to step forward, Deem said.

The Real Story: Funding

Both attorneys agreed that, while the above changes were significant, the Obama Administration’s biggest act so far in the employment law arena was the massive funding the President has allocated to the Department of Labor and the EEOC.

After a decade of budget cuts (or no budget at all), the EEOC saw its budget increase by hundreds of millions of dollars, and the DOL recently received over $1 Billion to increase enforcement of worker protection laws.

This money means more employees, deeper investigations, and new leadership for the two agencies charged with overseeing federal workplace laws.

In case you are skeptical that more money is all the agencies needed to shake things up, the EEOC’s Chicago District Office recently announced that it’s planning to review every discrimination charge that comes in for systemic discrimination, something that seemed impossible a year ago. They’ve also announced new tactics in charge reviews, including increased employee interviews and broader requests for information from employers. Nowak said that he’s seen a dramatic increase in subpoenas from the EEOC, which spells trouble for many employers who try to respond to charges without lawyer assistance.

At the DOL, Nowak noted a swift uptick in OFCCP compliance audits, even where there’s a question as to whether the employer is really a government contractor.

The Future

Neither attorney would speculate whether Obama will pick up his employment reform agenda anytime soon. The 2010 elections are looming, and Nowak felt like the death of EFCA in Congress took the wind out of the sails on a lot of initiatives.

Both attorneys agreed that, but for the elections this fall, ENDA – the law extending discrimination protection to gay, lesbian, and transgender employees – would likely be on its way to a vote. It may be too hot a topic until after the election (or too cold – if incumbents are looking for something to tout back home).

[An Aside]

One final note – At the beginning of the post, I mentioned that both employer- and employee-side attorneys agreed that not much has changed since Obama took over. This agreement was pervasive – the two lawyers expanded on each other’s points throughout – and was remarkable to a young lawyer that’s been inundated with talk of how volatile the two sides are supposed to be.

The reason, I think, for the lack of derision, was two-fold: #1) the Chicago labor & employment bar is secretly full of professionals with manners; and #2) the talk was put on by the Chicago Chapter of LERA – a group founded on the principle that labor and management should get together to discuss the workplace and how to make it better.

LERA has been a great resource to me as I begin my career, and its one that I’d highly recommend to anyone involved in employment law or labor relations at any level. The national website is here. Go see if there’s a local chapter in your area.

Back to Work (That’s a Pun)

Tim Eavenson — Mon, 07 Jun 2010 13:00:31 +0000

Photo by Venn Diagram (Flickr)

Hey, everybody! Long time! Good to see you again – you’re looking good. What do you think of the new digs?

Sorry to take up so much space on housekeeping matters. Now that I’ve got things pretty much how I want them design-wise, I wanted to dedicate one quick post to fill you in on my decisions about content. Then it’s back to business! I know all 3 of my regular readers are super-excited.

As I said earlier, I’ve been taking the past few months to figure out what I can and can’t do with the blog while working as a judicial clerk. This deliberation was partly because of the ethical issues involved in me pumping out posts on issues that may end up before my judge, but that’s not the only thing that held me up. To be honest, the ethical stuff wasn’t that hard to work out: I’m going to eliminate any advice from my posts, obviously, but I can still write about cases and events (you know, “facts”), and I’ve always been careful not to get too personal or biased.

Once I really started thinking about it, though, I had another problem: there’s other stuff that I wanted to write about – things unrelated to substantive labor and employment law, having to do moreso with being a lawyer. I thought about starting a second blog, but that seemed stupid. God knows I hardly keep this one going; two blogs with no content is like two wallets with no money.

Plus, all the marketing and social media advice and blogs-about-blogs that I’d read said not to deviate from your site’s laser-focus, or you could destroy your online brand and lose credibility with your core demo.

I went back and forth on this for too long, and then realized the following:

Right now, this isn’t actually my business. I’m not practicing, or trying to win clients, or market myself or anything; and
I didn’t start the blawg as a marketing tool! I actually wanted to add to the discourse, not just float a running advertisement for Tim, Employment Lawyer on the internet.

After these epiphanies, I decided that most of the people who read this site are lawyers, and I was probably over-thinking the whole damned thing and should just write whatever I felt like writing.

So that’s what I’m going to do. While the site will always be focused on employment law, when I need to fill in the gaps, I’m just going to write. About being a lawyer, especially a young lawyer. Or about being a dad lawyer. Or a lawyer with a blog and a Twitter account and a LinkedIn profile.

I am also planning on writing some (carefully-worded, fully approved) posts on being a judicial clerk; this job is giving me a front row seat to see how lawyers deal with judges and each other, and I don’t want to waste that vantage point.

So, there you go. Back to work – mine and everybody else’s.

Big boy posts start tomorrow.

Where I’ve Been

Tim Eavenson — Thu, 25 Feb 2010 16:27:18 +0000

“Delay is preferable to error.” – Thomas Jefferson

Well, it’s been a while. Sorry to disappear for so long without leaving word of my forwarding address.

As many of you know, I have been on the hunt for a full-time legal job for some time. I haven’t posted much on CE during these months; every time I sat down to write, I felt like I was betraying my job search (and, in turn, those who relied on my income). I always assumed that when I found my next job, I would give it a few weeks to settle in, and then dive back into CE with a newfound enthusiasm.

Well, in January, I found my next step. I am currently clerking for a judge in the Chancery Division of the Cook County Circuit Court. It’s a phenomenal experience. (Emergency TROs to enforce noncompetes, administrative review of public-sector employment issues, analysis of every type of contract known to man… stop me when you’re jealous.)

A downside, though, is that I’m just not sure what this unexpected position means for the blog. Suddenly, I have to worry about things that never were an issue before. Like impartiality. While CE has been purely informational (at best), much of it is tailored to specific types of clients, and occasionally meanders into legal advice.

I cannot practice while I’m clerking, for obvious reasons , and I need to make sure that my work out here in the wild west of professional responsibility that is legal blogging doesn’t affect my ability to appropriately do my job.

I don’t think that CE is dead, or that my blogging days are over. I love this blog, and my twitter account, and all the people I have e-met because of them. I just don’t know exactly what direction CE can or will take in the near term, and am therefore taking the preferable route to error and holding off for now.

While I figure it out, please enjoy these other labor and employment blogs that were always much better than mine, anyway:

Gruntled Employees

Ohio Employer’s Law Blog

Work Matters

Connecticut Employment Law Blog

Delaware Employment Law Blog

HR Lawyer’s Blog

Time to Update Your Poster

Tim Eavenson — Sun, 08 Nov 2009 13:27:50 +0000

Employers – the EEOC has issued an updated “Equal Employment is the Law” workplace poster to reflect the recent changes in Federal Labor laws.

Specifically, the new poster includes updated information on the ADA Amendments, some updated DOL language, and information on the new Genetic Information Nondiscrimination Act (GINA) which goes into effect November 21.

The EEOC website has information on ordering new posters, but also has a downloadable version of the new poster, and a downloadable supplement to the 2002 poster, if you’ve got a glossy version of that one that you want to keep up.

Go download one of these two notices and put a pushpin in it. Not only will it keep you in compliance, but your employees notice when things like that change, and it makes you look like you’re thinking about their rights. (That’s a good thing.)