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LABOR & CONSTRUCTION LAW UPDATES
These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
(Advertising Material)
DECEMBER 2017
Inside This Issue
1. Sexual Harassment Claims in the News
2. Earned Bonuses Over 20 Years Can Entitle an Employee to Continued Bonuses
3. How Successor Employer Can Avoid Violating the National Labor Relations Act
4. Illinois Biometric Information Privacy Act Allows Private Parties to Sue and Get Attorney’s Fees
Sexual Harassment Claims in the News
I am sure that you and most of your employees have read about the sexual harassment claims in the news. This gives employees a heightened awareness of what they may perceive as their newly-found rights and a deep pocket.
Make no mistake, if an employer does not have a written anti-harassment policy which describes the procedure on how to lodge complaints, as well as how the employer will handle such complaints, defense of claims is virtually impossible.
The second prong requires all employers must have an internal policy on how the employer will conduct the investigation, as well as options on how to treat the accuser as well as the accused. Training for managers is also essential.
We have the expertise to develop the anti-harassment policy, the internal investigation procedure, as well as the training. For more information email Stan at: sniew@senlaw.net
Earned Bonuses Over 20 Years Can Entitle an Employee to Continued Bonuses
Schultze began working for LaSalle Bank, a subsidiary of ABN Amro, in 1983. Schulze was never offered a written employment contract, but promoted many times and became an officer of the company. ABN was eventually sold to Royal Bank of Scotland, while LaSalle was sold to Bank of America. Schulze was the manager of the $21 billion sale to LaSalle and the $93 million sale to ABN. At that time he had a base salary of $300,000 and bonuses topping $1.2 million. The following year Royal Bank asked Schulze to take over as head of ABN without discussion of salary or bonuses. Previous holders of the position Schulze took over ranged earned bonuses between $2-$5 million dollars. When Schulze was terminated he was offered $300,000 as severance without any bonus. Schulze brought suit under the Illinois Wage, Payment and Collection Act, seeking $2.4 million dollars in a bonus. The trial court agreed with Schulze and ABN appealed.
ABN argued that his bonuses were discretionary and, therefore, cannot be recovered. The Appellate Court disagreed in that Schulze was given a bonus by ABN in 2008 and failed to notify Schulze that there would be a change in the longstanding methodology used by ABN to determine bonuses. The court viewed this as an unequivocal comment to pay a bonus. Schulze vs. ABN Amro, Inc., October 2017.
How Successor Employer Can Avoid Violating the National Labor Relations Act
An employer is a successor employer, obligated to recognize and bargain with a union representing the predecessor’s employees when (1) there is a substantial continuity of operations, and (2) a majority of the new employer’s work force, in an appropriate unit, consists of the predecessor’s employees. The essence of successorship, however, is not premised on an identical re-creation of the predecessor’s customers and business, but rather, on the new employer’s conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor in order to take advantage of the trained work force of its predecessor.
With respect to the issue of substantial continuity between predecessor and successor operations, the Supreme Court has identified the following factors as relevant to the analysis: (1) whether the business of both employers is essentially the same; (2) whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and (3) whether the new entity has the same production process, produces the same products, and basically has the same body of customers. Fall River Dyeing. Most importantly, these factors are to be analyzed from the perspective of the employees, i.e., whether they “understandably view their job situations as essentially unaltered.”
Applying the relevant factors, the National Labor Relations Board (NLRB) found that there was substantial continuity of operations. Employer A and Employer B performed the same general business service: providing school bus transportation for the special education students in the same County. The drivers and monitors were doing the same general job transporting special education students by school bus on a predetermined route. In many cases, pursuant to the county’s request, the drivers were paired with the same monitors, drove similar routes, and transported many of the same students. Accordingly, the drivers and monitors were doing the same job as before and without any hiatus in operations, only now their employer was Employer B not Employer A.
The NLRB found some minor differences between the two operations and terms and conditions of employment. Once found to be a successor under current law, all employers must provide unions with notice and opportunity to bargain prior to the implementation of discharges, demotions and suspensions. Unions are also entitled to information via email such as a list of employees that were terminated, which were retained and all other relevant information.
While successor employers are not bound to the prior CBA, they have a clear duty to bargain.
Illinois Biometric Information Privacy Act Allows Private Parties to Sue and Get Attorney’s Fees
Biometric data is a measurement or copy of a unique physical characteristic of any individual. It can be a fingerprint, retina or iris scan, voiceprints, hand scans, or a facial geometry.
The Illinois Biometric Information Privacy Act (BIPA) is the only one in the nation that allows private parties to sue and has a fee-shifting provision allowing plaintiffs to recover attorney fees.
Biometric data creates security concerns because the data is unique to the individual and cannot be changed like a password. Employers must prevent unauthorized disclosure of biometric data because it can have permanent ramifications on an employee’s privacy. Even more, if an employer has a blanket requirement that employees provide fingerprints or other biometric data, that can open the door to class action lawsuits. Face scans used for facial recognition fall under BIPA’s definition of biometric data which includes “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” Illinois law is clear that the employer must obtain permission before collecting the data. It makes good business judgment for employers to disclose they are collecting the biometric data in a pre-employment form.
Technology does exist for employers using biometric data, without storing it, which can minimize the risk or liability under BIPA. Such storage may be expensive but it must be considered against the potential damages which can reach $10 million dollars.
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