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Inside This Issue
1. NLRB Issues Memo Regarding Undocumented Workers
2. NLRB Looks to Expand Remedies for Unfair Labor Practices
3. Federal Judge Orders Arbitration Under Union Agreement
4. Transgender Employees Entitled to Use Women’s Bathroom under Illinois Law
5. Contract Must Be Enforceable in Order to Recover Under Theory of Quantum Meruit
6. Privity of Contract Required Between General Contractor and Purchaser for the Implied Warranty of Habitability to Apply
NLRB Issues Memo Regarding Undocumented Workers
In November the NLRB General Counsel (“GC”) issued Memorandum GC 22-01 which defines rights and remedies of immigrant workers under the National Labor Relations Act (NLRA). The GC opined that undocumented workers are statutory employees and entitled to protection under the NLRA.
In order for the NLRB to protect the rights of all immigrant workers, both documented and undocumented, the NLRB has developed a safe, accessible, and dignified engagement with the NLRB.
In cases involving the unlawful discharge of an employee, each NLRB Region will seek traditional make-whole remedies, including full back pay and unconditional reinstatement of the discriminatee. There are times the NLRB cannot immediately seek back pay or reinstatement because the discriminatee may not have work authorization in the United States. In such a case the NLRB would afford the discriminatee a reasonable period of time to complete forms and present appropriate documents allowing the employer to meet its obligations under federal law to verify employee work authorization.
The NLRB Regions are also requested to seek an order requiring that an employer’s supervisors and managers undergo training on employees’ rights, including using E-Verifiy when used as a tool to violate the NLRA.
At NLRB hearings, Counsel for the NLRB is to oppose an employer’s intent to introduce evidence or question witnesses about their immigration status during a ULP proceeding. The NLRB Regions are also asked to consider whether attempted inquiries into a witness immigration status or work authorization is itself an unfair labor practice. The reason is such questioning could be an implied threat of reprisal or interference with witness testimony.
The Memorandum also authorizes injunctions against the employer for particularly coercive conduct like immigration-related threats or retaliation conduct.
In conclusion it would be prudent for all employers to read and understand General Counsel Memorandum GC 22-01 which is available at the NLRB website. Consider this Memorandum in light of the current administration policy concerning migrant workers.
NLRB Looks to Expand Remedies for Unfair Labor Practices
In November the National Labor Relations Board (NLRB) sent a notice and invitation to file briefs as to whether the NLRB’s make-whole remedy should be expanded to include consequential damages in addition to back pay, interest and expenses for searching for work.
Accordingly, the NLRB asks the parties and interested amici to address the following questions:
1. Should the NLRB modify its traditional make-whole remedy in all pending and future cases to include relief for consequential damages, where those damages are a direct and foreseeable result of a respondent’s unfair labor practice?
2. Alternatively, should the make-whole remedy include relief for consequential damages only upon findings of egregious violations by a respondent?
3. If consequential damages are to be included in make-whole relief, how should they be proved, and what would be required to demonstrate that they are a direct and foreseeable result of an employer’s unfair labor practice?
4. What considerations support making the proposed change to the NLRB’s traditional make-whole remedies?
5. What considerations support retaining the NLRB’s traditional exclusion of consequential damages from its make-whole remedies?
If any employer is interested in commenting, it must be filed with the NLRB in Washington, D.C. on or before December 27, 2021, not to exceed 20 pages.
Federal Judge Orders Arbitration Under Union Agreement
International Union of Operating Engineers Local 150 brought suit against Roland Equipment of Springfield, Illinois, asking the court to order a sick-day dispute to be arbitrated. The pertinent facts are that the employer unilaterally implemented sick-day policy without first negotiating the terms of the sick-day policy which affected IUOE 150 members. Roland argued that it is not required to arbitrate the dispute because the Union agreement does not include a provision specifically requiring arbitration over a sick-day policy. The judge looked to the Collective Bargaining Agreement (CBA) which stated in part “any claim or dispute involving an interpretation or application of the agreement by an employee, or employer, or the Union” is a grievance under the CBA and must be submitted to arbitration.
Employers would be wise not to implement policies that affect unionized workers without first getting the approval from an affected union.
Transgender Employees Entitled to Use Women’s Bathroom under Illinois Law
In August of 2021 the Second District State Appellate Court held that denying a transgender woman access to the women’s bathroom was discrimination under the Illinois Human Rights Act.
The transgender woman did not undergo genital surgery, but Hobby Lobby denied access even though the employee changed her personnel files and legal documents to reflect her gender.
The Appellate Court held “sex” is a “status” subject to change and does not depend on a woman’s genitalia. The court rejected Hobby Lobby’s argument that she could use the unisex bathroom which does not cure the fact that the employee was denied access to the women’s bathroom. The case is Hobby Lobby Stores, Inc. v. Sommerville.
Contract Must Be Enforceable in Order to Recover Under Theory of Quantum Meruit
The First District State Appellate Court opined in Kaine v. Option Care that when an underlying contract was determined to be unenforceable as a matter of public policy, then the plaintiff could not recover under quantum meruit.
Kaine contracted with Option Care to negotiate tax credits with Illinois and Wisconsin officials. Due to Kaine’s actions, Option Care received tax credits of over 5 million dollars. When Kaine sent invoices to Option Care, Option Care refused to pay under the contingent fee arrangement. The appellate court found the agreement was unenforceable because it provided a contingency fee for lobbying in violation of the Lobbyist’s Registration Act.
Privity of Contract Required Between General Contractor and Purchaser
for the Implied Warranty of Habitability to Apply
The First District State Appellate District affirmed the circuit court of Cook County that a condominium purchaser does not have a claim for breach of implied warranty of habitability against the general contractor who had no contractual relationship with the purchaser.
In 2006, 1400 Museum Park began construction of a condominium building and hired Kenny Construction as the general contractor. When Museum Park dissolved the unit owners formed a condominium association to manage the property. Several years later there were leaks in the building water supply lines and the association sued Kenny and the plumbing contractor to recover repair costs.
The First District State Appellate Court followed Illinois Supreme Court precedent and determined privity of contract is required to state a claim for breach of implied warranty of habitability and dismissed the complaint against Kenny.
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