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LABOR & CONSTRUCTION LAW UPDATES

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JUNE 2019

Inside This Issue

1. The Tort of Negligent Hiring is Alive and Well in Illinois

2. Illinois Appellate Court Ups the Ante for Employers Who Tolerate or Ignore Harassment Complaints

3. The Illinois General Assembly Legalizes Recreational Marijuana

4. Employers can Give Employees Leeway with Time Clock Logins

5. Prevailing Wage Act Amended

The Tort of Negligent Hiring is Alive and Well in Illinois

In a pair of decisions in May of 2019, the Illinois Supreme Court made it clear that the tort of negligent hiring does not require many negative allegations. In the first case of Doe v. Coe a student and his parents filed suit against two persons and several church officials alleging that their son age 15 was sexually assaulted by a youth pastor. Plaintiffs alleged that the church conducted no background check prior to and after hiring him and the youth pastor was often alone with minors and other persons witnessed and reported inappropriate behavior.

The Court went on to say that failure to conduct a background check was factual and more than a mere conclusion. To state a cause of action there must be a duty to supervise and only general foreseeability is required in an employment context. Notice of a particular unfitness is not a required element since it was sufficient to allege a breach of duty to supervise and monitor the pastor. Willful and wanton conduct overlap with negligent supervision and can be stated as separate counts.

The second negligent hiring and training case was against a bar and its owner. In Griffin v. Prairie Dog, the plaintiff’s wrists were broken when a bouncer roughly escorted the plaintiff out of the defendant’s bar. The court permitted an admission of testimony about the lack of footage from the surveillance camera. The court permitted questions about the bouncer’s temperament as exhibited by his playing football. The bouncer’s criminal convictions were also permitted to be heard by the jury as well as the fact that the bar did not conduct background checks or screening.

Employers who place employees in a position dealing with the public or vulnerable persons have an obligation to do appropriate screening and background checks to avoid the results as in the two recent cases discussed above.

Illinois Appellate Court Ups the Ante for Employers Who Tolerate or Ignore Harassment Complaints

Two weeks ago, in a case of first impression, an Illinois Appellate Court ruled that a corporation or similar entity can be sued under the Illinois Gender Violence Act (“IGVA”).

The IGVA was passed in 2004 and makes “gender related violence” illegal as a form of sex discrimination. The IGVA allows victims to sue persons who commit acts of gender violence.

Section 5 of the Act states:

Sec. 5. Definition. In this Act, "gender-related violence", which is a form of sex discrimination, means the following:

(1) One or more acts of violence or physical aggression satisfying the elements of battery under the laws of Illinois that are committed, at least in part, on the basis of a person's sex, whether or not those acts have resulted in criminal charges, prosecution, or conviction.

(2) A physical intrusion or physical invasion of a sexual nature under coercive conditions satisfying the elements of battery under the laws of Illinois, whether or not the act or acts resulted in criminal charges, prosecution, or conviction.

(3) A threat of an act described in item (1) or (2) causing a realistic apprehension that the originator of the threat will commit the act.

In Gasic v. Marquette Management, Inc., the Appellate Court reversed the dismissal against the corporation under the IGVA. In this case the defendant corporation managed an apartment complex where the plaintiff lived. It is alleged that the corporation employed a maintenance worker who entered plaintiff’s apartment where he “engaged in unwanted and inappropriate sexual contact with plaintiff that amounted to assault and battery.” The plaintiff further alleged that the defendant corporation perpetrated gender related violence by encouraging or assisting the maintenance worker by its failure to supervise and monitor the maintenance worker. The Appellate Court construed the IGVA to mean that a legal entity such as a corporation can act “personally” to give rise to civil liability.

Of equal concern, Section 15 of the Act provides for civil damages, injunctive relief, emotional distress or punitive damages as well as an award of attorney’s fees and costs.

It would seem that if the Gasic case goes to judgment in favor of the plaintiff, it should eventually wind-up before the Illinois Supreme Court.

The Illinois General Assembly Legalizes Recreational Marijuana

On May 31, 2019 the Illinois General Assembly adopted the Cannabis Regulation and Tax Act legalizing recreational marijuana and the Governor is expected to sign the legislation into law. The 600 plus page Act covers numerous provisions such as who can possess and use marijuana, possession In motor vehicles, driving under the influence, taxation, as well as pardons and expungement of arrest records.

Section 10-50 of the Act deals with employment and states in pertinent part:

(a) Nothing in this Act shall prohibit an employer from adopting reasonable[i] zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.

(b) Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.

(c) Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.

(d) An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms.

The Act also amends the Illinois Right to Privacy in the Workplace Act in that it is now clear that recreational cannabis is a “lawful product” which prohibits employers from taking adverse employment actions related to use of lawful products outside working hours.

The law becomes effective January 1, 2020.

[i] The word reasonable appears 62 times in the Act. That is certain to bring litigation over interpretation.

Employers can Give Employees Leeway with Time Clock Logins

The 7th Circuit Court of Appeals ruled on May 29 in Weil v. Metal Technologies that an employer does not violate the Fair Labor Standards Act by paying employees only for scheduled hours of work. The employer would allow the employees to time-stamp in early and clock-out after their scheduled shift time. This practice is permissible if the employer knows that the employees are not working during said time. The rule of the case is employers need not compensate employees for minor pre and post shift time clock punches. In this case the plaintiffs did not provide evidence that the employees were working beyond their scheduled shifts.

Prevailing Wage Act Amended

Public Act 100-1177 amended the Prevailing Wage Act (PWA) in a number of respects. The PWA now defines a labor organization:

“Labor organization” means an organization that is the exclusive representative of an employer’s employees recognized or certified pursuant to the National Labor Relations Act.

The Illinois Department of Labor (IDOL) is mandated to do a study and report regarding females and minorities employed on public works projects in Illinois using categories for gender, race and ethnicity in the same manner as the U.S. Census Bureau.

The IDOL has always been required to determine the prevailing rate of wages paid to individuals based on submissions by employers or labor unions. Under the new law if the IDOL cannot reasonably and fairly apply prevailing wages in any locality because no labor agreements or understandings exist, then IDOL can determine the rate and fringes for the same or most similar work in the nearest and most similar neighboring locality which have labor agreements or understandings. This provision is designed to make certain there is a prevailing wage in every county, city or municipality.

Employers must now include on certified payroll:

(i) the worker’s name, (ii) the worker’s address, (iii) the worker’s telephone number when available, (iv) the last four digits of the worker’s social security number (v) the worker’s gender, (vi) the worker’s race, (vii) the worker’s ethnicity, (viii) veteran status, (ix) the worker’s classification or classifications, (x) the worker’s gross and net wages paid in each pay period, (xi) the worker’s number of hours worked each day, (xii) the worker’s starting and ending times of work each day, (xiii) the worker’s hourly wage rate, (xiv) the worker’s hourly overtime wage rate, (xv) the worker’s hourly fringe benefit rates, (xvi) the name and address of each fringe benefit fund, (xvii) the plan sponsor of each fringe benefit, if applicable, and (xviii) the plan administrator of each fringe benefit.

Public Act 100-1177 is effective June 1, 2019.

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