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

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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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NOVEMBER 2019



Inside This Issue

1.    “Draws” Clarified under Illinois Wage Payment and Collection Act (“IWPCA”)

2.    When is an Employer Required to Give 60-Day Notice Under Worker Adjustment and Re-Training Notification Act (“WARN”)

3.    When is Obesity an Impairment under the ADA

4.    Use of Parking Lots under Illinois Workers’ Compensation Act

5.    NLRB to Reconsider Whether the NLRA Provides Unions Protection for Profane and Offensive Statements

​6.    How much longer will we see “Scabby the Rat”?



“Draws” Clarified under Illinois Wage Payment and Collection Act (“IWPCA”)


The employer, The Tile Shop, had a practice of deducting more than 15% from a plaintiff employee’s paycheck during pay periods during which the plaintiff made more than $1,000.00 in commissions in order to get back money for prior $1,000.00 “draws” that were given to the employee during pay periods when the employee did not make $1,000.00 in sales commissions.  The employee alleged a violation of Section 115/9 of the IWPCA and argued that the cash draws were actually cash advances so as to invoke the maximum 15% deduction rule. 


The United States District Court interpreting Illinois law noted that the employer’s draw/reconciliation system was, in actuality, a part of a formula for calculating semi-monthly commission statements.  Thus, the employer reconciliations were not “deductions” from either the employee’s wages or final compensation for the purposes of Section 115/9 of the IWPCA.



When is an Employer Required to Give 60-Day Notice Under Worker Adjustment and Re-Training Notification Act (“WARN”)


In a decision issued on September 26, the U.S. Court of Appeals for the 7th Circuit provided guidance.  The plaintiff sued Hamilton County Coal Company after the plaintiff and 157 other full-time workers received a hand-delivered “Temporary Lay-off Notice.”  Hamilton was placing the workers on temporary lay-off for the period February 1, 2016 to August 1, 2016. 


The notice asked the workers to return on that end date, but, in the meantime, the laid off workers would not be employed by Hamilton and were free to pursue other employment.  The plaintiff filed a class action suit in Federal district court alleging that Hamilton violated WARN by failing to provide 60 days’ notice before imposing the mass layoff.  The plaintiff alleged that more than 33% of the mine’s full-time workers suffered employment termination within the meaning of WARN and that Hamilton reduced the hours of workers by more than 50% during each month of the six-month period. 


The appellate panel began by noting that under Department of Labor guidance, “termination” means the permanent cessation of the employment relationship, while “layoff” means the temporary cessation of that relationship.


The 7th Circuit stated that, as the relevant distinction between a layoff and an employment termination is whether the termination was expected to be temporary or permanent, plaintiff was required to show at least a material factual dispute on that point.


The 7th Circuit stated that a reduction in hours of work is not a cessation of the worker’s employment relationship but rather a distinct situation that occurs when an employer retains a worker but cuts their hours, effectively cutting their pay.


The plaintiff’s second argument was also rejected finding that since the layoff did not exceed six months, it was not covered by the Act.



When is Obesity an Impairment under the ADA


The 7th Circuit Court of Appeals examined two questions under the American with Disabilities Act (ADA):  Is extreme obesity an actual impairment; did the employer perceive the plaintiff’s extreme obesity to be an impairment?


In Richardson v. CTA, the 7th Circuit reviewed a case where a bus driver was weighing in at times from 350 pounds to 566 pounds.  He was fired by the CTA because the CTA found after testing, it was unsafe for him to drive a bus and he sued under the ADA claiming extreme obesity was a physical impairment.  The CTA argued that the extreme obesity was not a disability and objective tests showed it was unsafe for him to drive buses.  The plaintiff could not make hand over hand turns, could not see the floor and his body hung over the seat. 


The 7th Circuit affirmed the district court holding that extreme obesity is not actionable under the ADA unless it is a result of a physiological disorder.   The district court examined two parts of the ADA:


  • The ADA prohibits employers from ‘discriminating against a qualified individual on the basis of disability.’  To succeed on an ADA claim, an employee must show (1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by his disability.
  • The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”


At issue is whether plaintiff can demonstrate either (1) his extreme obesity is an actual impairment; or (2) CTA perceived his extreme obesity to be an impairment.


Observing that the ADA does not define “impairment” but that the Equal Employment Commission defined “physical impairment” as “any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more body systems.”  The court adopted the physiological disorder test reasoning that without a physiological condition would mean an employee with weight outside the normal range would have a disability and sue under the ADA. 


There was testimony at the trial by medical professionals that extreme obesity is in itself a physiological disorder which was rejected by the Court.



Use of Parking Lots under Illinois Workers’ Compensation Act


Generally, under the Illinois Worker’s Compensation Act, if an employer provides a parking lot to employees and an employee is injured on that lot, the employee is entitled to recover under the Act.    What happens in the case where the employer does not own or control the parking lot provided and parking in the lot is not required by the employer? 


In a recent Cook County case the employee testified he parked in an Ace Hardware parking lot near the employer restaurant.  Employee explained that he parked in the Ace lot “[t]hat’s where they gave us permission.”  He further stated supervisor posted a note in employee break room “we can only park at Ace but not between Thanksgiving and Christmas, park in the street.”  The Human Resources Director testified employees were not permitted to park in the restaurant lot nor the ski shop lot next door.


The employee parked in the Ace parking lot and ran out to make sure he could clock in on time.  The Employee slipped and fell on ice and was unable to return to work and sought medical, temporary total disability, and permanent and partial disability under the Act.  At a Commission hearing the employee was accused of poor performance, insubordination and making threats which pre-dated his injury.  The arbitrator denied the request for benefits since the employee did not prove the accident arose in course of employment, but the decision was reversed by the Workers’ Compensation Commission which found that the employer provided the Ace parking lot to its employees, making the accident compensable. 


The Circuit Court of Cook County confirmed the Commission’s decision and the employer appealed.  The appellate court noted that the employer did not require the use of the Ace lot and the employer had no authority to make the lot safer, thus the injury did not arise out of or in the course of employment. 


The Appellate Court noted that there are two elements to be proven by the employee/claimant.  The court said:

To obtain compensation under the Act, a claimant must show, by a preponderance of the evidence, that he suffered a disabling injury that arose out of and in the course of his employment. Baggett v. Industrial Comm'n, 201 Ill. 2d 187, 194, 266 Ill.Dec. 836, 775 N.E.2d 908 (2002). An injury “arises out of” one's employment if it originated from a risk connected with, or incidental to, the employment and involved a causal connection between the employment and the accidental injury. Id. “In the course of” refers to the time, place, and circumstances of the accident. Illinois Bell Telephone Co. v. Industrial Comm'n, 131 Ill. 2d 478, 483, 137 Ill.Dec. 658, 546 N.E.2d 603 (1989). Both elements must be present at the time of the claimant's injury to justify compensation under the Act. Id. Usually, whether the claimant proved these elements is a question of fact for the Commission to resolve and that determination will not be disturbed on appeal unless it is against the manifest weight of the evidence. Joiner v. Industrial Comm'n, 337 Ill. App. 3d 812, 815, 272 Ill.Dec. 88, 786 N.E.2d 627 (2003). 


In determining whether the parking lot exception applies, it is clear that we must determine whether the employer “provided” the parking lot in question to its employees. We make this determination by considering: (1) whether the parking lot was owned by the employer, (2) whether the employer exercised control or dominion over the parking lot, and (3) whether the parking lot was a route required by the employer.


Thus, the court ruled the employee was not entitled to worker’s compensation.



NLRB to Reconsider Whether the NLRA Provides Unions Protection for Profane and Offensive Statements


The National Labor Relations Board (NLRB) in September asked for briefs to comment on whether or not the NLRB should adhere to, modify or overrule the standard applied in previous cases where extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA).


Often in labor disputes one party or the other screams, yells, uses profanities and “gets in the other parties’ face.”  The question becomes should such offensive conduct continue to be protected.


On November 1 The NLRB extended the time for parties to file their briefs on or before November 27, 2019.



How much longer will we see “Scabby the Rat”?


​​We have all seen Scabby the Rat and the Corporate Fat Cat which are two inflatable balloons used by construction unions as a way for a union to put pressure on an owner or a general contractor to get rid of a non-union contractor. 


In an Advice Memorandum, the NLRB questioned whether or not such inflatables are an exercise of free speech or a violation of the secondary boycott provisions of the National Labor Relations Act.  During the Obama Administration three Board decisions stated that the inflatables are a form of free speech against the neutral. 


The current General Counsel of the NLRB is going to test the validity of the free speech argument in a case which arose in the Chicago region.  We will keep you posted as to any change in the decision.




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