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LABOR & CONSTRUCTION LAW UPDATES

2022 Newsletters


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 2022


Inside This Issue

1.    What Constitutes Retaliatory Discharge Under State and Federal Law

2.    Age-Bias Claim Rejected

3.    Mandatory Arbitration in Sexual Harassment Is Voidable

4.    Security Officer’s Discrimination Claim Fails

5.    U.S. Supreme Court Weighed Limits As To EPA Efforts on Climate Change

6.    NLRB General Counsel Launches New 10(j) Injunction Initiative

       When Employers Threaten or Coerce Employees During Organizing Campaigns



What Constitutes Retaliatory Discharge Under State and Federal Law​


The Miller plaintiffs worked for the CTA as general managers overseeing CTA operations.  In the Spring of 2016 the CTA began receiving complaints regarding busses with cooling systems overheating.  Eighteen of twenty-five of the reported cooling system issues were in a Miller managed garage.  CTA upper management made a decision to fire Miller and the other plaintiff. 


Just prior to the termination the two plaintiffs complained to one senior manager that the CTA’s equal employment opportunity programs were discriminatory.


After the firing, the two plaintiffs sued the CTA and the EEOC Manager Bonds under Title VII of the Civil Rights Act as well as the Illinois Human Rights Act alleging they were fired because of their race and, alternatively, because they complained to a supervisor. 


The Federal Appellate Court for the Seventh Circuit held that complaining generally about discrimination without a connection to a class was not actionable and it was proper for the federal district court to enter summary judgment in favor of the CTA and dismissed the case.



Age-Bias Claim Rejected


U.S. Foods alleged the plaintiff was placed on a performance improvement plan, since his work was not up to par.  U.S. Foods said the plaintiff never improved and he was fired.  The plaintiff brought a lawsuit under the Age Discrimination In Employment Act.  The federal district court said that the relevant standard under the ADA is whether age was the “but for” cause of the alleged discriminatory employment action.  The federal district court judge noted that the plaintiff offered very little evidence that it was his age not his job performance that precipitated the firing.



Mandatory Arbitration in Sexual Harassment Is Voidable


On March 3, 2022, President Biden signed into law HR 4445 which makes arbitration of sexual harassment and sexual assault cases voidable by an employee.  The law permits plaintiffs to opt out of any pre-dispute waiver of class action of workers benefits status for such claims.  The new law insures that the enforceability of any arbitration agreement is to be decided by a court not an arbitrator.


The new law is not retroactive and applies to claims or disputes after the law became effective. 


Employers are encouraged to review existing arbitration clauses, employment agreements, policies, as well as handbooks.



Security Officer’s Discrimination Claim Fails


The plaintiff was a security officer who claimed that an HR representative called her a homophobic slur while at work.  There were no witness as to the alleged incident and plaintiff did not report the remark at or near the time it was allegedly made.  The company alleged that plaintiff was fired because of attendance issues which was denied by the plaintiff.   The Appellate Court for the First District in Illinois ruled that plaintiff failed to provide substantial evidence based on sexual orientation, except for the alleged incident.  The Appellate panel said even if the slur was accepted as true, this was a solitary incident which is a far cry to stating a claim of harassment.


U.S. Supreme Court Weighed Limits As To EPA Efforts on Climate Change


The U.S. Supreme Court is hearing a case that attempts to limit EPA efforts in climate change.  The case involves the limits the EPA can place on a West Virginia power plant emissions under the Clean Power Plan Act dating back to the Obama administration. 


A decision is expected in June.


NLRB General Counsel Launches New 10(j) Injunction Initiative When Employers Threaten or Coerce Employees During Organizing Campaigns


In a new memorandum issued February 1, 2022, National Labor Relations Board (NLRB) General Counsel announced an initiative to seek injunctions under Section 10(j) of the National Labor Relations Act (NLRA) in certain cases where workers have been subject to threats or other coercive conduct during an organizing campaign.  The initiative aims to protect worker rights and deter statutory violations in the earliest phases of unlawful employer anti-union actions before unlawful discharge.


Section 10(j) of the NLRA authorizes the NLRB to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal NLRB processes are likely to be inadequate to remedy the alleged violations.  These injunctions are needed to timely protect employees’ Section 7 rights to exercise their free choice regarding engaging in union and protected concerted activities and to ensure that NLRB decisions will be meaningful.


“Threats often escalate into action, imposing even more burdens and chilling effects on employees,” said General Counsel Jennifer Abruzzo.  “They are not mere words impacting employees, but a prelude to what is likely to come to pass.  Therefore, I believe that threats or other coercive conduct needs to be promptly stopped, not only to erase the chilling impact they have on employees, but to prevent escalation of the words into action.”


Under the new initiative, the General Counsel will seek authorization to obtain prompt section 10(j) relief in organizing campaigns where the facts demonstrate that employer threats or other coercion may lead to irreparable harm to employees’ Section 7 rights.  Field offices are thus instructed to quickly investigate alleged threats or other coercion made during an organizing drive and promptly submit those cases for consideration of injunctive relief.


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