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By Andrew Kopon Jr., Maureen A. Murphy

Table of Contents

RECENT LEGISLATIVE AND JUDICIAL DEVELOPMENTS IN EMPLOYMENT LAW

United States Supreme Court Employment Law Decisions During 2015 12-17

Work Accommodations for Pregnant Employees 12
EEOC’s Obligation to Conciliate 13
Knowledge of Religious Accommodations 14
Disclosing Sensitive Security Information 14
Compensating Employees for Security Screening Time 15
Notice of Employment Procedure Interpretation 15
Timeliness Requirement under ERISA 16
Contract Principles Applied to ERISA Agreements 16
Same-Sex Marriage Recognized as Fundamental Right 17

Employment Issues Currently Pending Before the U.S. Supreme Court. 17-18

Class Action Certification with Non-Identical and Non-Injured Employees 17
Title VII Filing of Constructive Discharge 17
Standing under the FCRA for Plaintiffs with no Actual Injury 18

Significant Seventh Circuit Decisions During 2015 18-20

Successor Liable for Dissolved Entity’s Retaliatory Discharge of Employee 18
Disclosure of Information about Former Employee in Public Filings may Constitute Retaliation 19
Seniority System Trumps Disabled Employee’s Request for Transfer 19

Recent Legislative Developments In Employment Law. 20-23

Federal Minimum Wage Increase 20
Affirmative Action for Veterans and Disabled Individuals 20
Updates to OSHA 20
Medical Marijuana 21
Eligibility for Overtime Pay 21
Criminal Background Checks in Illinois 22
Chicago Minimum Wage Ordinance 22
Illinois Minimum Wage Question 23

EMPLOYMENT LAW STATUTES

I. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 24-90

Who is an “Employer”? 25
Who is an “Employee”? 26
When Can a Timely Title VII Claim Be Filed? 27
The Employer-Employee Relationship 28
Who May Sue Under Title VII? 29
Prohibited Conduct Under Title VII 29
Examples of Unlawful Conduct 32
Limitations on Voiding Policies to Avoid Liability 34
Employer’s Use of Information Attained Subsequent to the Discriminatory Act 34Burdens of Proof 35
Burdens of Proof 35
Direct Method of Proof 35
McDonnell Douglas Burden-Shifting Analysis 36
Mixed-Motive Analysis 38
Use of Comparators 39
Cat’s Paw Analysis 40
Sexual Harassment 40
Hostile Work Environment 40
Quid Pro Quo Harassment 43
Same-Sex Harassment 43
Other Forms of Harassment 45
Sex Stereotyping 45
Employer Liability Harassment by Supervisors 46
Affirmative Defenses 49
Harassment by a Non-Supervisor 52
Knowledge of Pregnancy 55
Intended Pregnancy 55
Maternity Leave 55
Disability Benefits 56
Paternity Leave 57
Marital Status.57
Abortion 58
Fringe Benefits.59
Breastfeeding 59
Preemption 59
Affirmative Action60
Religious Discrimination 61
Coverage 61
Definition of “Religion” 62
Sincerely Held Beliefs 62
Employer Inquiries into Religious Nature or Sincerity of Belief 63
Reasonable Accommodations 63Notice of Conflict 63
Notice of Conflict 63
What is a “Reasonable” Accommodation? 64
Undue Hardships 66
Exemptions for Religious Organizations 67
Scope of Exemption 68
Qualifying as a Religious Organization 72
For-Profit Activities of Religious Organizations 73
Exemption for Educational Entities 74
Ministerial Exception 75
The Bona Fide Occupation Qualification Exemption 77
Associational Discrimination 78
Retaliation 79
Proving a Retaliation Claim 81
Retaliation Claims Not Dependent On the Underlying Claim 83
Associational Retaliation 83
The Equal Employment Opportunity Commission and Title VII 84
Damages 86
Required Notices, Records and Documentation 88
EEO Reporting Requirements 89

II. THE AMERICANS WITH DISABILITIES ACT 91-121

To Whom Does the ADA Apply? 92
ADA Requirements for Employers 93
Definition of Disability Broadened 94
Physical or Mental Impairment Requirements Amended 94
Loosening of “Substantial Limitation” Requirement 95
Major Life Activities Expanded 97
“Regarded As” Disabilities Clarified 98
Qualifying Conditions Under the ADA 99
Non-Binding Examples of Impairments The EEOC Believes Should Consistently Meet the Definition of Disability 99
Examples of Impairments Which Do Not Consistently Meet the Definition of Disability 99
Specific Exclusions Under the ADA 100
Qualified Individuals 101
Reasonable Accommodations 102
Interactive Process Required 103
Requesting a Reasonable Accommodation 106
Requesting Documentation of Disability 107
Accommodating “Regarded As” Disabilities 108
Undue Hardships 108
Hostile Work Environment & Harassment Claims 110
Constructive Discharge 112
Retaliation 112
Reverse Discrimination 113
Affirmative Defense – Direct Threat to Safety 113
Associational Discrimination 113
Burdens of Proof 113
Effects of Social Security Total Disability Benefits Claim on an ADA Claim 115
Medical Examinations 115
Pre-Employment Inquiries 116
Last Chance Agreements 117
Enforcement and Damages 117
EEOC Nuances Under the ADA 118
Recordkeeping Requirements 118
Medical Confirmation of an Employee’s Disability 119
After-Acquired Evidence of Employee Misconduct 119
Practical Ramifications of the ADA Amendments Act 120

III. AGE DISCRIMINATION IN EMPLOYMENT ACT 122-135

Definition of “Employer” 122
Definition of “Employee” 122
Requirements of the ADEA 123
Examples of Prohibited Activities 123
Constructive Discharge 124
Reverse Discrimination 124
Filing a Claim 124
Proving an ADEA Claim 126
Disparate Treatment v. Disparate Impact 128
Permissible Actions by Employers 129
Defenses 130
Inconsistent Allegations and Social Security Benefits Claims 132
Same Actor Inference 132
Record Maintenance 133
Releases of Liability 133
Damages 134

IV. OTHER FEDERAL STATUTES

Civil Rights Act of 1991 136-142
Scope of the Civil Rights Act of 1991 136
Practical Impact on Section 1981 Claims 136
Differences from Title VII 137
Disparate Impact Cases 138
Mixed Motive Cases 139
Jury Trials 140
Arbitration 141
Damages 141
Equal Pay Act 143-147
Pay Differentials 143
Prohibited Conduct Under the EPA 144Definition of “Wages” 144
Definition of “Wages” 144
Definition of “Employer” 145
Stating a Claim145
Defenses146
The Equal Pay Act and Title VII 146
Salary Reviews 147
Damages 147
Statute of Limitations 147
State Statutes 147
Fair Labor Standards Act 148-178
Coverage Under the FLSA 148
Who is an “Employee”? 148
Independent Contractors 148
Volunteers 150
The Two Types of FLSA Coverage 150
Individual Coverage Under the FLSA 150
“Enterprise” Coverage Under the FLSA 151
Exempt vs. Non-Exempt Employees 153
Salary Basis Requirement 153
Fee Basis 154
“Actual Practice” Determination 154
Safe Harbor 154
Exceptions to the No-Docking Rule 155
Exemptions from the FLSA Minimum Wage and Overtime Pay Requirements 155
White Collar Employee Exemptions 156Family Business Exemption 164
Family Business Exemption 164
Religious and Charitable Institutions Exemption 164
Ministerial Exemption 165
Law Enforcement and Fire Personnel Exemption 166
Companionship Services Exemption 166
Other Exemptions Under the FLSA 167
FLSA Minimum Wage Requirements 168
Compensation 169
Deductions 169
Hours Worked170
FLSA Overtime Requirements 173
FLSA Child Labor Requirements 174
FLSA Recordkeeping Requirements 174
The FLSA & the Equal Pay Act 175
State and Local Government Employees 175
Class Actions Under the FLSA 176
Enforcement 176
Statute of Limitations 177
Arbitration Clauses 177
Damages 177
Penalties 177
The Family and Medical Leave Act 179-206
2015 Change to the Definition of “Spouse” 179
2015 Same-Sex Marriage Legalized in All States 180
2009 Changes to the FMLA 180Definition of “Employer” 181
Definition of “Employer” 181
Serious Health Conditions 182
Eligibility for Leave 183
Taking Leave Pursuant to the FMLA 185
Calculating the Year for FMLA Purposes 186
Paid or Unpaid Leave 187
Employer Notice Requirements 188
Employee Notice Requirements 189
Husband and Wife Employed by the Same Employer 190
Supporting Documentation 191
Enforcement 193
Proving an FMLA Claim 194
Recordkeeping Requirements 195
Returning After the Leave Period Expires 196
Health Benefits During the Leave 196
Damages 196
Releases of Liability 197
Military-Related FMLA Leave 197
Qualifying Exigency Leave 198
Military Caregiver Leave 198
Changes to the Military Leave Entitlement 199
Taking Military-Related Leave 199
Military-Related Notice Requirements 200
Documentation Required for Military-Related Leave 200
Common FMLA Issues Arising in the Workplace 201
Vague Healthcare Requirement Form 201
Who Should Fill Out the Healthcare Provider Form? 202
Suspicious Intermittent Leave Patterns 202
Other Employment While On FMLA Leave 203
Terminating an Employee on FMLA Leave 203
Special Considerations for Schools 204
Additional Clarifications Related to the FMLA 205
The Fair Credit Reporting Act 207-209
Who is Protected By the FCRA? 207
What is a Consumer Report? 207
Key Provisions of the FCRA 208
Written Notice and Authorization 208
Adverse Action Procedures 208
Certifications to Consumer Reporting Agencies 208
Investigations Exempt from the FCRA 208
The Electronic Communications Privacy Act 210-214
Exceptions to Employers’ Interception of Communications 211
Consent 211
Ordinary Course of Business: “Extension Telephone Exemption” 212
Intercepting Live Conversations 213
Penalties and Damages 214
Statute of Limitations 214
State “Wiretap” Statutes 214
Tips for Employers 214
The Volunteer Protection Act 215-220
Protection Under the Volunteer Protection Act 215
Definition of “Volunteer” 216
Definition of “Nonprofit Organization” 216
Liability of Volunteers 216
Volunteer Conduct Excluded from Immunity 217
Damages 217
Joint and Several Liability 217
Preemption of State Volunteer Laws 218
Recommendations for Not-For-Profit Organizations 220
The Sarbanes-Oxley Act of 2002 221-223
Protection of Whistleblowers 221
Requirements of the Act 221
Arbitration Agreements 222
Filing a Claim 222
Damages 223
Compliance Guidance 224

V. ARBITRATION AGREEMENTS 225-232

General Principles 225
The Federal Arbitration Act 225
Contracts Under the Federal Arbitration Act 225
What Types of Arbitration Agreements are Unenforceable? 226
Arbitrator’s Decisions 228
Appealing an Arbitrator’s Decision 229
Effects of Arbitration Agreements on Class Actions 229
State Statutes 230
Suggestions for Drafting and Executing Arbitration Agreements 231

VI. VARIOUS ILLINOIS STATUTES. 233-250

The Illinois Religious Freedom and Civil Union Act 233
The Illinois Religious Freedom and Marriage Fairness Act 233
The Illinois Employee Credit Privacy Act 235
The Illinois Human Rights Act 235
The Victims’ Economic Security and Safety Act 238
Illinois Equal Pay Act 241
Privacy in the Workplace Statutes 243
Personnel Record Review Act 244
Wage Payment and Collection Act 247
Illinois Minimum Wage Act 247
Veterans Preference in Private Employment Act 250

PRACTICAL EMPLOYMENT CONSIDERATIONS

VII. PREVENTATIVE EMPLOYMENT MEASURES 251-263

Job Postings 252
Pre-Employment Screening 252
Damages 254
Hiring 254
Performance Reviews 256
Disciplinary Action 257
Leave of Absence Policies 258
Advancements or Promotions 259
Layoffs and Terminations 260
Severance Agreements 261
References for Former Employees 262

VIII. EMPLOYEE HANDBOOKS 264-273

At-Will Employment 264
Handbooks and Implied Contracts 265
“Acceptance” of the Handbook 269
Disclaimers 269
Modification of an Existing Employee Handbook 271
Drafting an Employee Handbook 272

IX. EMPLOYMENT LIABILITY INVESTIGATIONS 274-286

Employer’s Duty to Investigate 275
How Should an Employer Plan an Investigation? 276
Designating an Investigator 276
Planning a Reasonable and Effective Investigation 277
Confidentiality 278
Conducting an Investigation 278
Fact-Finding 278
Documents to Procure 279
Interviewing Parties and Witnesses 280
Interviewing Techniques 280
Credibility 283
Concluding an Investigation: The Investigative File and Report 283
Documentation 283
Corrective Action 285

APPENDIX

X. EMPLOYMENT POLICIES AND FORMS. 288-306

Sexual Harassment Policy For Educational Organizations 288
Purpose of the Policy 288
Statement of the Policy 288
Definition of Sexual Harassment 288
Procedural Remedy 289
Filing a Complaint 289
Informal Resolution 289
Investigation and Hearing 289
Anti-Harassment Policy 291
General Prohibitions 291
Specific Sexual Harassment Prohibitions 291
Employees’ Rights and Responsibilities 291
Complaint Investigations 292
Managers’ Responsibilities.292
Violations of Policy 292
Sample Employee Acknowledgement Form 293
Illinois Department of Human Rights Questionnaire 294
Sample Application for Employees and Volunteers 296
Sample Computer Usage and Social Media Policy 301
Scope of the Policy 301
The Policy 301