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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.
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FEBRUARY 2018

Inside This Issue

1.    Illinois Supreme Court Finds Illinois Anti-Stalking Law Violates Free Speech

2.    A Kinder, Gentler NLRB. . .We Will See?

3.    Illinois Employers Must Accommodate Religious Clothing and Facial Hair

4.    PTSD is Disability

5.    7th Circuit 2017 PTSD Case

6.    Return to Work and Fitness for Duty Certification under the FMLA and ADA

7.    Amendments to the Illinois LLC Act

 
Illinois Supreme Court Finds Illinois Anti-Stalking Law Violates Free Speech

In People v. Walter Relerford the court reviewed the Illinois Stalking Statute (720 ILCS 5/12-7.3) and the Cyberstalking Statute (720 ILCS 5/12-7.5).  The Stalking Statute essentially prohibits a course of conduct which would place a person in fear for a person’s safety or suffer emotional distress.  Examples include following the same person around, making threats of immediate or future bodily harm and/or assault.  This law always excluded compliance with worker safety laws, wage and hour laws and lawful picketing. 

The Cyberstalking Statute basically prohibits the same conduct, but only by electronic communications.  A unanimous Illinois Supreme Court ruled that the First Amendment right of free speech is violated because the laws embrace a vast array of circumstances that limit free speech far beyond the generally understood meaning of stalking.  The Court gave by way of examples, business owners complaining at town meetings or council meetings and a host of social interactions that a person might find distressing.  The practical effect of this decision is relatively unknown since only certain sections of the law were struck down. 

While labor disputes are excluded from the reach of the two  statutes, some police departments would occasionally use the statute to remove union representatives who would sit outside of employees’ homes and follow employees to and from jobs creating perceived fear in the employee and his or her family.

A Kinder, Gentler NLRB. . .We Will See?

In a pair of decisions in December 2017, the National Labor Relations Board (“NLRB”) reversed two Obama-era decisions.

Micro Units in NLRB Conducted Employee Elections

It is axiomatic that when a union petitions for an election to certify the union as the exclusive bargaining representative, the smaller the unit, the greater the probability the union will win the election.  In an Obama-era NLRB decision in Specialty Health Care the NLRB held that employees presumably shared a community of interest among themselves.  For an employer to expand the unit to include more voters under Specialty Health Care, the employer must prove that the employees shared an “overwhelming” community of interest with the described unit. 

Then in December 2017 in PCC Structural case, the Trump NLRB in a 3 to 2 decision reversed the “overwhelming” test and returned to the traditional community of interest standards that has been applied throughout most of the history of the NLRB. 

Joint-Employers

If an employer is found to be a joint-employer with a related entity, both the employer and related entity are jointly and severally liable for unfair labor practices of either entity  This was known as the Browning Ferris standard. 

In 2015, the Obama NLRB said that all that is needed to prove two or more employers are joint-employers is merely having reserved the right of Employer A to exercise control over Employer B. 

In December 2017 in a 3 to 2 decision, the Board returned to the pre-Browning Ferris standard that governed joint employer liability.  The case that reversed Browning Ferris was handled by Stanley E. Niew of the Law Offices of Stanley E. Niew, P.C.

In all future and pending cases, two or more entities will be deemed joint-employers under the National Labor Relations Act (NLRA) if there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited in scope or is routine.  Accordingly, under the pre-Browning Ferris standard, proof of indirect control, contractually reserved control that has never been exercised, or control that is limited and routine was not sufficient to establish a joint-employer  relationship.  The majority of NLRB concluded that the reinstated standard adheres to the common law and is supported by the NLRA’s policy promoting stability and predictability in bargaining relationships.

Illinois Employers Must Accommodate Religious Clothing and Facial Hair

The Illinois Human Rights Act was recently amended to make it unlawful for an employer to impose upon a person any term or condition of employment which would require such person to violate or forego a sincerely held practice of his or her religion, such as wearing of attire, clothing, facial hair as required by his or her religion.  The new law covers all employment issues including hiring, promotion and transfer. 

Like all laws there is an exception for an employer.  If an employer makes a bona fide effort and demonstrates that the employer is unable to reasonably accommodate the employee’s or applicant’s religious beliefs, practices without undue hardship when conducting the employer’s business, then it would not be a violation of the Human Rights Act.   We will need to see how the Human Rights Commission will handle discrimination charges under the amendment. 

The new law does not prohibit restrictions on attire or facial hair to maintain workplace safety or food sanitation.

PTSD is Disability

A large number of former service members are discharged from the military with diagnosed and undiagnosed post- traumatic stress disorder (PTSD).  Note that PTSD is not exclusive to former military.  PTSD is listed in the definitions in the regulations to the Americans with Disabilities Act (ADA) as substantially limiting brain function.  Under the ADA the veteran employee is a qualified individual with a disability.  The term qualified individual “means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”  Particularly challenging for an employer is a veteran with PTSD may struggle with concentration or memory.  This disorder may require special accommodations, such as modified break schedule, working from home or dividing large assignments into smaller tasks.  Another common limitation is difficulty handling stress.  Possible accommodations could include presence of a service dog, allowing phone calls to doctors and others for support and possibly using a mentor to alert the employee that the behavior is unprofessional or inappropriate.  Sleep disorder is also a condition with PTSD.  Accommodations may include flex starting time, separate schedule or even allowing for a nap.  The most challenging limitation for any employer is absenteeism.  An accommodation may include working different times and allowing flex time make-up days.

Each employer must be mindful of what is truly an essential job function and can the employer accommodate a veteran/employee to perform with or without an accommodation.  The ADA also provides for demonstration of “good faith efforts” to work with the employee “to identify and make reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.”  Unlike other disabilities, a PTSD sufferer may find himself/herself no longer in need of the protections of the ADA.

7th Circuit 2017 PTSD Case

​In Monroe, plaintiff alleged that he was terminated because of a mental disability in violation of Americans with Disability Act (ADA) and the Rehabilitation Act.  About 8 of plaintiff’s subordinates complained about a hostile and intimidating treatment by the plaintiff.  The employer conducted an investigation during which the plaintiff disclosed a diagnosis of PTSD and depression.  At a subsequent meeting to decide what to do with the plaintiff, management discussed whether the PTSD diagnosis was legitimate and management questioned the timing of the diagnosis since it coincided with the employees’ complaints which was suspect.  Plaintiff did not produce any documentation for the diagnosis.  The defendant employer fired the plaintiff for creating a hostile and intimidating work environment. 

The 7th Circuit Court of Appeals held: (1) positive performance evaluations for three years prior to firing was insufficient to show the employer’s asserted reason for termination was pretextual; (2)  a misstatement in the employer’s EEO Position Statement regarding how many employees were at a meeting did not establish pretext; (3)  employer’s inconsistent statements during discovery about what plaintiff’s supervisors discussed was insufficient to show pretext; (4) because the decision makers discussed the employee’s PTSD during a decision making meeting, did not establish pretext; and (5) the non-disabled employees the plaintiff identified as comparators were not similarly situated to the plaintiff.  

Finally, the Court stated that even if the plaintiff’s PTSD caused his hostile behavior, an employer may terminate an employee for inappropriate behavior even when the behavior is caused by the disability. 

This case illustrates what is or is not a pretext and further illustrates termination for inappropriate behavior caused by a disability does not violate the ADA.

Return to Work and Fitness for Duty Certification under the FMLA and ADA

Managing employer’s return to work policies after a Family and Medical Leave Act (FMLA) leave is an interactive process between an employer and an employee and is critical in determining whether an employer is legally obligated under the American with Disabilities Act (ADA) to provide an accommodation to the employee.

After FMLA leave related to a serious health condition an employer may require a Fitness for Duty Certification from a health care provider, so long as the notice is provided to the employee at the time the FMLA leave is granted, i.e., certification will be required.  Employers should document by outlining the employee’s medical condition and its impact on the employee’s ability to perform the job as outlined in Essential Job Functions as part of a formal job description in order to decide if a reasonable accommodation can be provided so the employee can perform essential job functions. 

But see our October 2017 Newsletter discussing Federal Appellate Court ruling in that an extended medical leave is not a reasonable accommodation under the ADA.  The Raymond decision is being appealed to the Supreme Court.  The Supreme Court is not required to hear the case.

Amendments to the Illinois LLC Act

The Illinois Limited Liability Act (LLC Act) was recently amended to allow members of the limited liability corporation (LLC) to obtain books and records.  Generally the operating agreement should govern the process by which members of the LLC can obtain books and records.  The recent amendment to the LLC Act allows members to access information even if the operating agreement is silent.  The LLC Act requires at a minimum the following records to be maintained:  (1) The names and  addresses of each member, the amount of money each member contributed, and the date upon which each member joined the LLC; (2) The articles of organization; (3) Copies of any federal, state or local income tax returns for the last three years; and (4) The written operating agreement and any financial statements of the LLC for the past three years.   

The above list is a minimum requirement and if a LLC maintains other records a member should be permitted to see those records.  More specifically, a member has the right to any information relating to the company’s activities, financial condition and other circumstances of the company’s business. 

Disassociated members have the right to inspect LLC books and records only for the period during which time the requester was a member of the LLC.  The LLC Act also permits the LLC to modify its operating agreement to limit disclosures among members, managers and the company.  A restriction may include requiring a requester to execute a non-disclosure agreement.  Finally, correspondence with attorneys may be a record that can be requested under the LLC Act.

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Law Offices of Stanley E. Niew, P.C.