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

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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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MARCH 2017

Inside This Issue

1.    So You Think You Can Call the Police Anytime a Union is Misbehaving. . .Think Again

​2.    No “Good Faith” Defense to OSHA Violation Where There is A History of Disregard for OSHA Rules

​3.    Retaliation Claim – Family and Medical Leave Act

​4.    First Illinois Appellate District in Chicago Clarifies Implied Warranty of Habitability Rules

​5.    Illinois Human Rights Act:  Disability Harassment Found to Constitute Unlawful Discrimination

So You Think You Can Call the Police Anytime a Union is Misbehaving. . .Think Again

The National Labor Relation Board (“Board”) recently ruled that subcontractors on multi-employer jobs in the construction industry are not permitted to call the police even when a union is trespassing on a job site. The Board’s logic is the general contractor is in control of the jobsite not the subcontractor so it is in the exclusive purview of the general contractor to call the local police.

Does the rule change if the union is engaging in violence or the destruction of property? Probably yes, since the union and employees are permitted to engage in lawful concerted activities. Violence and destruction of property are not protected concerted activity.  In proper circumstances Illinois employers are able to obtain an injunction in a state court against violence, destruction of property and against blocking jobsite egress and ingress. Concerted activity is the right to self-organize, to join or assist a labor organization, to bargain collectively through its chosen representative or to engage in other mutual aid and protection which would include picketing and protesting.  In a case decided this month, the Board ruled that employees who were wrongfully laid off could protest outside of a plant as well as on private property.

In the same case the Board ruled that the mere threat of calling the police when there is concerted activity is an unfair labor practice. Similarly, the actual call to the police also constitutes an unfair labor practice.  It did not make any difference to the Board that when the police arrived no one was forced to leave or was arrested. 

The Board’s view is that minor trespassing may also be lawful. For example, if the job access is along a busy highway, a union may be able to stand or picket on private property.

It would be prudent for general contractors, as well as subcontractors and suppliers, to review their policies to determine if a policy violates the Board rulings.

No “Good Faith” Defense to OSHA Violation Where There is A History of Disregard for OSHA Rules

Last month the 7th U.S. Circuit Court of Appeals rejected an employer’s petition for review of an Occupational Safety and Health Review Commission (“Commission”) decision which found  the employer willfully violated OSHA regulations. The Court found the petition as insufficient to warrant review.

The employer was in the business of cleaning truck trailer tanks that haul toxic products such as ink and latex. The OSHA violation came in response to an employee-supervisor who was hospitalized from inhaling fumes after he entered a tank to clear a clogged valve. The supervisor knowingly entered a dirty trailer tank in violation of various employer rules. Although, he followed other employer rules by obtaining an entry permit, attaching himself to a retrieval device, and having a fellow employee stand by to supervise.

An Administrative Law Judge (“ALJ”) found the employer had violated OSHA rules, and the Commission affirmed the ALJ’s findings. The employer filed a petition for review with the 7th Circuit, presenting the following 2 arguments: 1) the accident was caused by “unpreventable employee misconduct;” and 2) there was no proof that any OSHA violation was “willful.”

The Court found that the “unpreventable employee misconduct” argument lacked merit; to establish the OSHA violation all that needed to be shown was that a supervisory employee had knowledge of the violation. Such knowledge can be imputed to the employer.  In this case,  the injured supervisor had actual knowledge of his own misconduct, so the Commission imputed his knowledge to the employer.

With respect to its second argument, the employer set forth a defense that it had acted in “good faith,” which should have precluded imputing knowledge of the violation to the employer.  The employer presented evidence it had rules prohibiting exactly what the supervisor did; employees did not usually violate the rules; it had shown instances of discipline and a lack of recidivism; its wash process eliminated toxic atmospherics; it had continuous testing and forced air ventilation in clean trailer tanks; and it’s written program had been previously reviewed by OSHA and found acceptable.

The Court considered the employer’s evidence but noted, “on the other hand, the facility manager had never disciplined an employee for improperly completing permits or for the violations apparent on the face of the permits. The Commission concluded that [the employer] therefore failed to take actions when violations of safety rules were plain, as would have been required in a good-faith-effort.”

The Court found it was reasonably foreseeable that employees would disregard safety procedures since most of the permits had contained errors or omissions which indicated a pattern of disregard for the rules.  The Court concluded the Commission made no error in rejecting that the employer acted in good faith.

Employers would be prudent to examine their procedures to determine if there is a pattern of disregarding OSHA rules.

Retaliation Claim – Family and Medical Leave Act

The U.S. Court of Appeals for the 7th Circuit recently affirmed in part a district court finding of a retaliation claim under the FMLA in the termination of an employee who needed time away from work to care for her autistic son.

Tracy Wink (“Wink”) had been employed by Miller Compressing Co. (“Miller”) for nearly 12 years when she requested intermittent FMLA leave to take care of her autistic son throughout the year. Miller granted Wink’s request in 2011.

In February 2012, Wink’s son was expelled from daycare due to the boy’s aggressive behavior. Wink requested, and Miller agreed, that she be allowed to work from home two days a week in conjunction with using FMLA leave for hours spent taking care of her son. The hybrid arrangement allowed Wink to log her work hours and deduct non-payable FMLA hours spent taking care of her son on the days she worked at home.

However, when Miller experienced financial problems in the summer of 2012, Miller decided none of its employees could work from home. So Miller gave Wink an ultimatum: either work full time in the office, or be considered a “voluntary quit.” Wink showed up on Monday to explain that she hadn’t been able to find day care for son. She subsequently left the office to take care of her son, and her employment was terminated.

The panel for the 7th Circuit stated the FMLA entitled Wink to take leave necessary to take care of her sick child, and that Wink had proved that Miller retaliated against her for asserting her FMLA right. The panel noted that Miller had no compelling reason to fire her, as Wink had been working two days a week from home since February without Miller complaining.

First Illinois Appellate District in Chicago Clarifies Implied Warranty of Habitability Rules

The implied warranty of habitability is a court-created creature of public policy designed to protect purchasers of new homes and condominiums who discover latent defects in their homes or units. 

Generally, the claim must be asserted against the builder-vendor, but was expanded in 1983 to permit the implied warranty claim to be asserted against a subcontractor of a builder-vendor where the purchaser had “no recourse” against an “insolvent” general contractor. 

In Sienna Court Condo Association v. Champion Aluminum (2017), the First Appellate District clarified a number of issues.  In Sienna the court made it clear that design professionals, such as architects and engineers, cannot be sued under the implied warranty.  Similarly, anyone who merely supplies materials is not subject to the implied warranty.  In other words, the design professional and supplier did not take part in the actual construction nor were they involved in the construction-sale of the real property which is a prerequisite to such a suit. 

The Sienna court was faced with the issue that the insolvent builder had insurance which may protect against the claim and that the Plaintiff-homeowner actually recovered over $300,000 from the developer’s warranty fund.  The court first addressed whether or not a plaintiff-homeowner can sue the subcontractor where the builder-developer was insolvent but in good standing with limited assets.  The court defined “insolvency” as simply meaning liabilities exceeded assets and the builder-developer had stopped paying debts in the ordinary course of business.  

The court emphasized that the possibility of “recourse” is not a determining factor in deciding whether the subcontractors are subject to liability.  The court rejected the “recourse” test and now the “insolvency” test is the sole test.  In other words, potential recovery from insurance policies is not a factor to be considered and the subcontractor can be sued under the implied warranty.  With respect to the next question, recovery of any proceeds from an insolvent developer’s warranty fund does not bar a property owner from maintaining a cause of action for the breach of implied warranty of habitability against subcontractors of a developer who participated in the construction of a residence.

​The rules explained above only apply to the jurisdiction of the First Illinois Appellate District which covers Cook County.  For example, if a homeowner were to litigate the same issues in the Second Appellate District covering the counties of DuPage, Lake, Kane, Kendall, McHenry and other counties extending west to the Mississippi River, the result is likely to be different.  The result may also be different if the case were litigated in the Fourth Appellate District which includes most of Central Illinois extending from the border of Indiana to the Mississippi River including the counties of Sangamon, Champaign and Logan.  For a complete list of counties check the Illinois Courts’ website.

Illinois Human Rights Act:  Disability Harassment Found to Constitute Unlawful Discrimination

The Illinois Second District Appellate Court, in Rozsavolgyi v. City of Aurora, recently held that disability harassment is a cognizable civil rights violation, that a claim for failing to provide a reasonable accommodation for a disability is cognizable as a separate civil rights claim and that the standard of employer liability for coworker harassment applicable to sexual harassment is also applicable to disability harassment.

Patricia Rozsavolgyi worked for the City of Aurora (“the City”)  from 1992 to 2012, eventually holding the position of Property Maintenance Compliance Officer.  She had a medical history of depression, anxiety, panic attacks and partial hearing loss, which constituted a “disability” under the Illinois Human Rights Act (“the Act”).  Ms. Rozsavolgyi claimed that her coworkers intentionally agitated, embarrassed, humiliated, degraded, harassed, discriminated and provoked her by calling her names such as “cuckoo, Shutter’s Island, nuts, crazy, weird, whacko” among other vulgarities, and by leaving offensive notes in her mailbox, spitting on her car window, and creating rumors about her.

Ms. Rozsavolgyi notified the City about the harassment and requested they make a reasonable accommodation to make it stop. She further alleged that the City “failed and refused to take action” which ultimately lead to emotional distress (depression, fatigue, irritability, anxiety, etc.). She claimed that things finally boiled over just prior to her employment being terminated by the City, in a verbal exchange with a coworker where she called the coworker an “idiot.” Her subsequent complaint alleged unlawful termination based on her disability under the Act.

On interlocutory appeal, the Second District answered whether the Act prohibits “disability harassment” as a civil rights violation.

The Act provides that discrimination based on race, religion, national origin, age, sex, and disability, among other traits, is unlawful.  However, the only harassment expressly prohibited by the act is sexual harassment.

Ms. Rozsavolgyi argued that even before the 1983 amendment which listed sexual harassment as prohibited under the Act, the Act prohibited sexual harassment as sex discrimination. Therefore, the same reasoning should be applied to disability discrimination, and as such, disability harassment should be found prohibited under the Act.

The Court reasoned that liberal construction of the phrase “terms, privileges, or conditions of employment” to include a prohibition on the creation of hostile work environments based on disability, consistent with the Act’s purpose to protect the right of the disabled to be free from workplace discrimination. Thus, the Court found that the Act prohibits disability harassment. The City has appealed to the Illinois Supreme Court.

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