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WHAT TRUCK DRIVERS CAN DO IF THEIR EMPLOYER TRIES TO FORCE THEM TO DRIVE AN UNSAFE TRUCK

Truck drivers have protections under the Surface Transportation Assistance Act (“STAA”) 49 U.S.C. 31105 and various Illinois laws from retaliation for refusing to drive unsafe trucks and/or refusing to violate the Federal Motor Carrier Safety Regulations. 49 C.F.R. 390.6(a)(2) prevents an employer from coercing a truck driver to operate a truck in violation of the Federal Motor Carrier Safety Regulations. Coercion occurs when a motor carrier, shipper, receiver, or transportation intermediary threatens to withhold work from, take employment action against, or punish a truck driver for refusing to operate in violation of certain provisions of the Federal Motor Carrier Safety Regulations, Hazardous Materials Regulations, and Federal Motor Carrier Commercial Regulations. An example of coercion is when a motor carrier (employer) fires a driver for refusing to accept a load that would require the driver to violate the hours of service requirements. This Coercion rule took effect on January 29, 2016. A truck driver can file a coercion complaint in writing within 90 days of the alleged coercion action with the Federal Motor Carrier Safety Administration’s Illinois Division Office located at 3250 Executive Park Drive, Springfield, IL 62703, Phone: (217) 492-4608 and Fax: (217) 492-4986 or the National Consumer Complaint Database, nccdb.fmcsa.dot.gov.

Take the following steps in the event your employer forces you to drive an unsafe truck or in violation of the Federal Motor Carrier Safety Regulations:

1.  Document the safety issues/safety violations in your Driver’s Vehicle Inspection Report (“DVIR”). Keep a copy of the DVIR for yourself – take a photograph of the your DVIR documenting the safety issues/violations with the truck.

2.  Take photographs if you can of the safety issues/safety violations on the truck. Protection under 49 U.S.C. 31105(a)(1)(B)(ii) allows you to refuse to drive a truck because you have a reasonable apprehension of serious injury to yourself or the public because of the vehicle’s hazardous safety condition. 49 U.S.C. 31105(a)(2) your apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude the safety or security condition imposes a real danger of accident, injury, or serious impairment to health. So you will want to document the safety issues with the truck to show that your apprehension of serious injury is reasonable. Make sure the safety issues/safety violations are documented in your DVIR and try to get pictures if you can.

3.  Turn in your DVIR documenting the safety issues/safety violations to your manager and in a professional manner request that the safety issues/violations be corrected. In order to get protection under 49 U.S.C. 31105(a)(1)(B)(ii) for refusing to drive a truck because you have a reasonable apprehension of serious injury to yourself or the public because of a hazardous safety condition, 49 U.S.C. 31105(a)(2) requires that must have sought from your employer, and been unable to obtain, correction of the hazardous safety or security condition. Turning in your DVIR documenting a violation of a commercial motor vehicle safety regulation, standard, or order likely gets you protection under 49 U.S.C. 31105(a)(1)(A)(i).

4.  In a professional manner refuse to drive the unsafe truck until management corrects the safety issues/safety regulation violations and/or makes the necessary repairs. At this point if you properly documented the safety violations/safety issues in your DVIR, provided the DVIR to management, and in a professional manner requested the safety violation/safety issues be corrected, you will likely have engaged in enough protected activity under 49 U.S.C. 31105.

5.  If management refuses to make the necessary repairs or corrections and threatens to retaliate against you for refusing to drive the unsafe truck then you can inform your manager in a professional tone and manner that you are reporting the safety violations on the truck and his/her threatened retaliation to the Federal Motor Carrier Safety Administration by calling 1-888-DOT-SAFT (368-7238) or online at nccdb.fmcsa.dot.gov. There are protections under the STAA, 49 U.S.C. 31105(a)(A)(i) protects truck drivers who file complaints or have begun a proceeding related to a violation of the commercial motor vehicle safety or security regulation, standard, or order. The STAA, 49 U.S.C. 31105(a)(A)(ii) prevents employers from retaliating against a truck driver because the employer perceives that the has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order. If the safety issue are an emergency, you can call 911 and report the safety violations. See www.fmcsa.dot.gov/consumer-protection/report-safety-violations.

Hopefully, management  decides to follow the law and take the unsafe truck out of service to correct the safety regulation violations and make the necessary repairs and steps four and five are unnecessary. In the event that management retaliates against you for exercising your rights under the STAA, under 49 U.S.C. 31105(b)(1), you have 180 days after the violation to file a complaint with the Secretary of Labor/OSHA. You should contact Brian J. Graber, Ltd., at (312) 291-4648 for an immediate consultation. You may also have other rights under Illinois law for retaliation.

If you want to learn more about your rights to refuse to drive an unsafe truck and report violations safety of regulations to your employer contact Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.

 

EMPLOYERS CANNOT RETALIATE AGAINST TRUCK DRIVERS WHO REFUSE TO DRIVE UNSAFE TRUCKS

The Surface Transportation Assistance Act, (STAA), 49 U.S.C. 31105(a)(1)(B)(i) and (ii), may prevent employers from retaliating against truck drivers who refuse to drive a truck because of the following reasons:

1.   Operation would violate a regulation, standard, or order of the United States related to     commercial motor vehicle safety, health, or security; or

2.  The truck driver has a reasonable apprehension of serious injury to himself/herself or the public because of the vehicle’s hazardous safety or security conditions and the truck driver has sought and has been unable to obtain correction of the hazardous safety or security condition from the employer. This provision a truck driver’s apprehension of serious injury is “reasonable” only if a reasonable individual in the circumstances then confronting the employee would conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health.

Under the STAA, 49 U.S.C. 31105(a)(1)(B)(i), a truck driver may have engaged in protected activity by refusing to drive a truck that is in violation of Federal Motor Carrier Safety Regulations. In Maverick Transp., LLC v. U.S. DOL, 739 F.3d 1149, 1156 (8th Cir. 2014) the court held that the DOL properly concluded a truck driver’s refusal to drive a truck that violated several federal safety regulations because of a fluid leak in the power steering box, a violation of 49 C.F.R. 393.209(e), and chaffing of brake hose, a violation of 49 C.F.R. 393.1(c), was protected activity under 49 U.S.C. 31105(a)(1)(B)(i).

Under the STAA, 49 U.S.C. 31105(a)(1)(B)(ii), a truck driver engages in protected activity if he/she has a reasonable apprehension of serious injury to himself/herself or the public because of the truck’s hazardous safety or security conditions. Whether the truck driver’s apprehension is indeed reasonable is analyzed from the view point of a reasonable individual. Gaines v. K-Five Construction Corp., 742 F.3d 256, 264 (7th Cir. 2014). The STAA, 49 U.S.C. 31105(a)(2), states that a truck driver’s apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the safety or security condition establishes a real danger of accident, injury, or serious impairment to health. If the truck driver’s “reasonable apprehension” of serious injury to himself/herself or the public because of the truck’s hazardous safety or security condition is reasonable the truck driver is required under the STAA, 49 U.S.C. 31105(a)(2) to ask his/her employer to correct the hazardous  before refusing to drive the unsafe truck. In Gaines v. K-Five Construction Corp., 742 F.3d at 264 the court held the STAA, 49 U.S.C. 31105(a)(2) indicates an employee is only protected under 49 U.S.C. 31105(a)(1)(B)(ii) for refusing to drive a vehicle if he/she first asked his/her employer to correct the hazardous condition, but the safety hazard remained uncured. In asking the employer to correct the hazardous condition, truck driver must be civil and respectful. See Formella v. U.S. DOL, 628 F.3d 381, 393 (7th Cir. 2010) (holding the Board could reasonably conclude that in shouting so loudly that other employees ran toward the office to see what was the matter, the driver exceeded any leeway to which he was entitled in pursuing his statutory rights).

If you believe that your employer retaliated against you for exercising your statutory rights under the STAA, 49 U.S.C. 31105(a)(1)(B)(i) or (ii) to refuse to drive unsafe trucks, the law limits the time you have to file your claims. Under 49 U.S.C. 31105(b)(2), you must file a complaint with the Secretary of Labor/OSHA not later than 180 days after the alleged violations occurred.  If you believe that you were retaliated against for exercising your rights to refuse to drive an unsafe truck, you should contact a competent attorney as soon as possible to evaluate your claim.

If you would like to learn more about a truck driver’s statutory rights to refuse to operate unsafe trucks under the STAA, 49 U.S.C. 31105(a)(1)(B)(i) or (ii), contact Brian J. Graber, Ltd., at (312) 291-4648 for a free confidential consultation.

EMPLOYERS CANNOT RETALIATE AGAINST TRUCK DRIVERS FOR ACCURATELY REPORTING HOURS ON DUTY

Under the Surface Transportation Act (STAA), 49 U.S.C. 31105(a)(1)(C) employers cannot retaliate against truck drivers for accurately reporting hours on duty pursuant to 49 U.S.C. 31501, et seq. The maximum driving times are listed in 49 C.F.R. 395.3. A truck driver does not have the comply with his or her employer’s demand to drive over the maximum drive times established by 49 C.F.R. 395.3 and/or falsify their reports of hours on duty.

The U.S. Department of Labor/OSHA says that protection from workplace retaliation means that an employer cannot take “adverse action” against workers such as:

(1) Firing or laying off

(2) Blacklisting

(3) Demoting

(4) Denying overtime or promotion

(5) Disciplining

(6) Denial of Benefits

(7) Failure to hire or rehire

(8) Intimidation/harassment

(9) Making threats

(10) reassignment affecting prospects for promotion

(11) Reducing pay or hours.

You may have a retaliation claim against your employer if you accurately reported your hours on duty and your employer retaliated against you by taking any of the above described “adverse action.” You will need to prove that your protected activity of accurately reporting your hours on duty was a “contributing factor” in the adverse employment action. An employee’s protected activity is a contributing factor if the protected activity “tended to affect in any way the outcome of the decision to take the adverse action against the employee.” See James v. CSX Transp. Inc., 2017 U.S. Dist. LEXIS 143640 at *15 (M.D. GA Feb. 21, 2017).

Under 49 USC 31105(j) the definition of “employee” also includes an independent contractor when personally operating a commercial motor vehicle. So an employer cannot retaliate against an independent contractor driving a commercial motor vehicle who accurately reports his or her hours on duty. See 29 C.F.R. 1978.101(h).

If you believe that you suffered adverse action in violation of the anti-retaliation provisions of the Surface Transportation Assistance Act, 49 U.S.C. 31105, the law limits the time you have to file a complaint with the Secretary of Labor to 180 days after the alleged violation occurred. See 49 U.S.C. 31105(b)(1). Therefore, you should immediately contact a competent lawyer as soon as possible to review the facts of your claim to determine what rights you may have.

If you would like to learn more about the protections against retaliation under the Surface Transportation Assistance Act and the remedies available call Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.

NURSING HOME CARE ACT PROVIDES STRONG WHISTLEBLOWER PROTECTIONS TO NURSING HOME EMPLOYEES FIRED FOR REPORTING VIOLATIONS OF ILLINOIS LAW AND FEDERAL LAW TO THEIR SUPERVISORS

On July 29, 2010, The Illinois Nursing Home Care Act was amended to include strong whistleblower protections to nursing home employees (including nursing home administrators) who engage in protected activity by doing any of the following:

1. Discloses or threatens to disclose to a supervisor or to a public body (like the Illinois      Department of Public Health) an activity, inaction, policy, or practice implemented by a facility that the employee reasonably believes is in violation of a law, rule, or regulation; or

2. Provides information to or testifies before any public body (like the Illinois Department of Public Health) conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by a nursing home administrator; or

3. Assists or participates in a proceeding to enforce the provisions of this Act.

Under 210 ILCS 45/3-810(b)(1) of the Nursing Home Care Act Whistleblower Protections, a facility cannot retaliate against any employees for reporting any violations of any Illinois or federal law, rule, or regulation to either their supervisors (such as an administrator, DON, ADON, etc.) or the Illinois Department of Public Health. Therefore, nursing home employees are free to report what they reasonably and honestly believe to abuse or neglect of residents directly to their supervisors or the Illinois Department of Public Health without fear of retaliation. Nursing home employees are free to cooperate with the Illinois Department of Public Health investigations into abuse and neglect of nursing home residents without fear of retaliation.

Under 210 ILCS 45/3-810(a) of the Nursing Home Care Act Whistleblower Protections, “retaliatory action” is defined to mean the reprimand, discharge, suspension, demotion, denial of promotion, or transfer, or change in the terms and conditions of employment of the employee of a facility that is taken in retaliation for any of the three forms of protected activity identified above.

An employee establishes a violation of the Nursing Home Care Act Whistleblower Protections by proving the following: (1) That he/she engaged in one of the three forms of protected activity described above; and (2) that the protected activity was a contributing factor in the retaliatory action alleged by the employee (i.e., suspension, discipline, termination, etc.). The facility may have a defense to the WhistleBlower Protections, if the facility proves by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity.

Upon proof of a violation of the Nursing Home Care Act Whistleblower Protections an employee of a facility may be awarded all remedies necessary to make the employee whole and to prevent future violations of this Section such as compensatory and punitive damages. Remedies imposed by the court may include, but are not limited to, all of the following:

1. Reinstatement of the employee to either the same position held before the retaliatory action or to an equivalent position.

2. Two times the amount of the back pay.

3. Interest on back pay.

4. Reinstatement of full fringe benefits and seniority rights.

5. Payment of reasonable costs and attorney’s fees.

In addition to the rights provided under the Nursing Home Care Act Whistleblower Protections, employees are free to seek additional remedies available under the Illinois Whistleblower Act and Illinois common law retaliatory discharge.

If you would like to learn more about your rights under the Illinois Nursing Home Care Act Whistleblower Protections or your rights under the Illinois Whistleblower Act or Illinois common law retaliatory discharge, call Brian J. Graber, Ltd., at (312) 291-4648 for a free confidential consultation.

STAA Protects Truck Drivers From Retaliation For Refusing To Drive While Ill or Fatigued

The Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105(a)(1)(B)(i) prohibits employers from retaliating against truck drivers who refuse to drive a truck because driving the truck would violate 49 C.F.R. 392.3 which prevents employers from requiring a truck driver to drive, while the truck driver’s ability or alertness is impair, or likely to become impaired, through fatigue or illness. Under the STAA, 49 U.S.C. 31105(a)(1)(B)(i) an employer cannot fire, discipline, or otherwise discriminate against a truck driver regarding pay, terms, or privileges of employment because the truck driver refuses to drive a truck in violation of 49 C.F.R. 392.3 because he/she is either ill or fatigued.

49 C.F.R. 392.3 states, “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the commercial motor vehicle. . . .” In Yellow Freight System v. Reich, 27 F.3d 1133, (6th Cir. 1994) the court upheld the decision of the of the Secretary of Labor that the trucking company violated the STAA by disciplining and firing the driver for exercising his right not to drive while suffering from fatigue and awarded damages.

A truck driver who notifies his/her employer that he/she is unable to operate a truck due to fatigue or illness making it unsafe to begin or continue to operate a truck has likely engaged in protected activity for the purposes of STAA, 49 U.S.C. 31105(a)(1)(B)(i) by politely and respectfully refusing operation a truck in violation of 49 C.F.R. 392.3. If the truck driver’s protected activity under 49 U.S.C. 31105(a)(1)(B)(i) is a contributing factor in the employer’s decision to fire the truck driver, or discipline, or otherwise discriminate against the truck driver, the employer may have to respond in damages.

The STAA, 49 U.S.C. 31105(b)(1) requires a truck driver claiming to have been fired, disciplined, or otherwise discriminated in violation of the STAA to file a complaint not later than 180 days with the Secretary of Labor (OSHA). This is a very short limitations period in which to exercise your rights. If you believe that you were fired or otherwise retaliated against for refusing to drive a truck in violation of 49 C.F.R. 392.3 because you were ill or fatigued so as to make it unsafe to begin or continue to operate a truck, contact Brian J. Graber, Ltd., at (312) 291-4648 for a free confidential consultation as soon as possible before the 180 day statute runs.

Even if the 180 day timeframe to file a complaint with the Secretary of Labor has run out you may still have rights under the Illinois Whistleblower Act, 740 ILCS 174/20 which prohibits an employer from retaliating against an employee for refusing to participate in any activity that would result in a violation of State or federal law, rule, or regulations. Similarly, a truck driver may have a cause of action against his/her employer for common law retaliatory discharge for whistleblowing and/or refusing to engage in conduct that would violate a federal regulation. Therefore, a truck driver’s refusal to operate a truck in violation of 49 C.F.R. 392.3 because of illness or fatigue making it unsafe begin or continue to operate a truck is likely protected activity under both the Illinois Whistleblower Act and Illinois common law retaliatory discharge. If an employer retaliates against a truck driver because the truck driver respectfully and politely refused to operate a truck in violation of 49 C.F.R. 392.3, the employer may be responsible for damages under both the Whistleblower Act and Illinois common law retaliatory discharge.

If you would like to learn more about your rights under the STAA, Illinois Whistleblower Act, and Illinois common law retaliatory discharge, contact Brian J. Graber, Ltd., at (312) 291-4648 for a free confidential consultation.

DISCRIMINATION AGAINST VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE

The Victim’s Economic Security and Safety Act (VESSA) and the Illinois Human Rights Act provide some measures of protection for persons under orders of protection because of domestic violence from employment discrimination. Each statute has its limitations.

ILLINOIS HUMAN RIGHTS ACT – ORDER OF PROTECTION STATUS

Thes Illinois Human Rights Act, 775 ILCS 5/1-103(K-5) defines “order of protection status” as a person’s status as being a person protected under an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101, et seq.) or an order of protection issued by a court of another state. The Illinois Human RIghts Act 775 ILCS 5/1-103(Q) defines unlawful discrimination as meaning discrimination against a person because of his/her order of protection status. The Illinois Human RIghts Act, 775 ILCS 5/2-102(A) makes it a civil rights violation for any employer to refuse to hire, discharge, discipline, or otherwise discriminate against a person because of his/her order of protection status.

RETALIATION:

The Illinois Human Rights Act, 775 ILCS 5/6-101, makes it a civil rights violation to retaliate against any person because he or she opposed that which he or she reasonably and in good faith believes is unlawful discrimination on the basis of order of protection status.

STATUTE OF LIMITATIONS: 

The Illinois Human Rights Act, 775 ILCS 5/7A-102(A)(1) requires any person with a claim for discrimination based on “order of protection status” and/or retaliation to file a Charge of Discrimination with the Illinois Department of Human RIghts within 180 days after the date of the civil rights violation.

ALLOWS FOR JURY TRIAL: 

The Illinois Human RIghts Act, 775 ILCS 5/8-111, allows a person subject to discrimination on the basis of “order of protection status” or who was retaliated against to bring an action in the circuit courts with a right to a jury trial. A victim of discrimination on the basis of “order of protection status” and/or retaliation is free to seek any and all remedies allowed under 775 ILCS 5/8A-104 for a jury. The remedies available under the Illinois Human Rights Act are significantly broader than the remedies allowed under the Victim’s Economic Security and Safety Act and there is no right to a jury trial under the Victim’s Economic Security and Safety Act.

If you would like to learn more about your right to be free from discrimination and retaliation on the basis of your “order of protection status,” contact Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.

VICTIM’S ECONOMIC SECURITY AND SAFETY ACT (VESSA)

VESSA, 820 ILCS 180/15(2) was passed in part, to address the failure of existing laws to protect the employment rights of employees who are victims of domestic or sexual violence and employees with a family or householder member who is a victim of domestic or sexual violence to take unpaid leave to seek medical help, legal assistance, counseling, safety planning or other assistance without penalty from their employers by prohibiting employers from discriminating against any employee who is a victim of domestic or sexual violence or any employee who has a family or household member who is a victim of domestic or sexual violence.

ENTITLEMENT TO LEAVE DUE TO DOMESTIC OR SEXUAL VIOLENCE: 

VESSA, 820 ILCS 180/20, allows an employee who is a victim of domestic or sexual violence or who has a family or household member who is a victim of domestic or sexual violence to take unpaid leave from work to address domestic or sexual violence by: (1) seeking medical attention; obtaining services from victim services organization; (3) obtaining psychological or other counseling; (4) participating in safety planning, temporarily or permanently relocating or other actions; and (5) seeking legal assistance or remedies, including preparing and participating in criminal or civil legal proceedings related to domestic or sexual violence.

VESSA, 820 ILCS 180/20(2) may allow an employee working for an employer that employs at least 50 employees to take 12 workweeks leave during any 12-month period. An employee working for an employee that employs at least 15 but not more than 49 employees may be entitled to a total of 8 workweeks of leave during any 12-month period.

VESSA PREVENTS EMPLOYERS FROM DISCRIMINATING AGAINST EMPLOYEES: 

VESSA, 820 ILCS 180/30, prohibits employers from failing to hire, refusing to hire, discharging, constructively discharging, or harassing or discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment or retaliating against any individual because: (1) the individual is or is perceived to be a victim of domestic or sexual violence; (2) attended, participated in or prepared for a criminal or civil court proceeding relating to an incident of domestic or sexual violence; (3) took leave pursuant for any reason allowed by VESSA, 820 ILCS 180/20; (4) requested an adjustment to a job structure, work requirement, including transfer or reassignment or implementation of a safety procedure in response to actual or threatened domestic or sexual violence, regardless of whether the request was granted; (5) is an employee whose employer is subject to 820 ILCS 275/21; or (6) the workplace is disrupted or threatened by the action of a person whom the individual states has committed or threatened to commit domestic or sexual violence against the individual or the individual’s family or household member.

VESSA STATUTE OF LIMITATION:

VESSA, 820 ILCS 180/35(1) provides for a three year statute of limitations to file a complaint against an employer with the Illinois Department of Labor. Under VESSA, 820 ILCS 180/10(10) a private employer must employ at least 15 employees in order to be covered under the provisions of VESSA.

VESSA REMEDIES: 

Unfortunately, VESSA does not provide for a jury trial for an employer’s unlawful discrimination and/or retaliation. An employee must file a complaint with the Illinois Department of Labor and proceed through an administrative adjudication. If the Illinois Department of Labor finds that an employer violated an employees rights under VESSA, the Illinois Department of Labor may award back pay damages, equitable relief such as hiring, reinstatement, and promotion; and reasonable attorney’s fees, reasonable expert witness fees and other costs to be paid by the employer.

If you would like to learn more about your rights under the Victim’s Economic Security and Safety Act (VESSA) and the Illinois Human Rights Act, contact Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.

U.S. DEPARTMENT OF LABOR PROPOSED AMENDMENTS TO WHITE-COLLAR OVERTIME EXEMPTIONS

The U.S. Department of Labor is finally proposing a rule to amend the Fair Labor Standards Act’s overtime regulations. The Fair Labor Standards Act, 29 U.S.C. 207(a)(1) requires employers to pay employees at one and one-half times the regular rate for every hour worked in excess of 40 hours in a work week. However, the Fair Labor Standard Act exempts certain employees from overtime pay if the employer pays them a salary of $23,660.00 a year and employs them in certain positions defined as executive, administrative, professional, outside sales, and computer employee. These exemptions from the overtime provisions of the Fair labor Standards Act is known as the White-Collar exemptions. The proposed new rule would increase the salary component from $23,660.00 to $50,440.00. Currently, employers are able to take advantage of their employees by paying them $23,660.00 (less than the poverty level for a family of four) in a position defined as executive, administrative, professional, outside sales, or computer employee and make them work sixty to seventy hours a week without any overtime pay. Under the proposed new rule employers would not be able to take advantage of the White-Collar exemptions to the overtime provisions of the Fair labor Standards Act unless they pay their employees a salary of $50,440.00. The proposed rule also increases the “highly compensated employee” exemption from $100,000.00 to $122,148.00. The U.S. Department of Labor anticipates that five million additional workers would be entitled to overtime within the first year alone as a result of the increased salary threshold.

The Illinois Human Rights Act Provides Better Remedies for Age Discrimination Than The Age Discrimination in Employment Act (ADEA).

American workers are remaining in the workforce beyond normal retirement age. Unfortunately, employers will continue to discriminate against employees 40 years of age and older. Federal law under the Age Discrimination in Employment Act (ADEA) and Illinois law under the Illinois Human Rights Act, prohibit age discrimination in employment. Both statues protect employees who are at least 40 years of age from discrimination, harassment, and retaliation based on their age. However the remedies available under the Illinois Human RIghts Act are far more superior than the remedies available under the ADEA.

An employee who proves his/her employer is liable for age discrimination is limited under ADEA, 29 U.S.C. 626(b), to recovery of back pay and liquidated damages for willful conduct, and may also obtain equitable relief, such as reinstatement or front pay. See Franzoni v. Hartmarx Corp., 300 F.3d 767, 773 (7th Cir. 2002). A successful employee on an ADEA claim may recover attorney’s fees and litigation costs. However, a successful plaintiff on an ADEA claim may not recover compensatory damages for pain and suffering or emotional distress damages. See Barton v. Zimmer, Inc., 662 F.3d 448 (7th Cir. 2011). Nor may a successful plaintiff on an ADEA claim obtain punitive damages against the employer. See Franzoni v. Hartmarx Corp., 300 F.3d 767, 773 (7th Cir. 2002). The remedies available under ADEA do not come close to making an employee who was subjected to illegal age discrimination whole.

An employee who proves his/her employer is liable for age discrimination under the Illinois Human Rights Act is entitled to a jury trial on all issues of damages. See 775 ILCS 5/8-111(3). Under 775 ILCS 5/8-111(4) a court or jury is allowed to award all remedies set forth in 775 ILCS 5/8A-104(4). 775 ILCS 5/8A-104 allows a successful employee on an age discrimination claim to obtain actual damages, hiring, reinstatement, promotion, back pay, fringe benefits, interest, attorney’s fees, expert witness fees, and litigation costs. Actual damages includes compensation for emotional harm and mental suffering. See ISS Int’l Serv. Sys. v. Illinois Human Rights Comm’n, 272 Ill.App.3d 969, 979 (1st Dist. 1995). Front pay is available in the event the court cannot reinstate a successful employee. See Charles A Stevens & Co. v. Human Rights Comm’n, 196 Ill.App.3d 748, 756 (1st Dist. 1990).

Generally, under 775 ILCS 5/7A-102(1), an employee wishing to assert his/her rights under the Illinois Human Rights Act to be free from age discrimination, harassment, and retaliation must file a charge of discrimination with the Illinois Department of Human Rights within 180 days after the date that a civil rights violation has been committed. The failure to timely file a charge of discrimination with the Illinois Department of Human Rights could result in dismissal of your claims. You can maximize your remedies by timely dual filing a charge of discrimination with the EEOC/IDHR within 180 days. 

If you believe your employer has unlawfully discriminated against your because of your age and you would like to learn more about your rights under the ADEA and the Illinois Human Rights Act, contact Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.

 

 

EMPLOYERS CANNOT GAG WHISTLEBLOWERS WITH CONFIDENTIALITY AGREEMENTS

Employers have been trying to use confidentiality clauses to prevent employees from reporting violations of Illinois and federal laws to government authorities. Employers use these confidentiality clauses to gag whistleblowers by threatening discipline, termination, and/or legal action. Most of these confidentiality clauses prevent employees from reporting suspected violations to outside parties without employer approval. No employer is ever going to give an employee approval to report suspected violations of the law to governmental authorities. Use of a confidentiality clause to gag whistleblowers violates the law and is against public policy.

On April 1, 2015, the Securities Exchange Commission announced its first enforcement action against a company for using restrictive language in confidentiality agreements to improperly prevent employees from whistleblowing. The SEC charged KBR, Inc., with violating whistleblower protection Rule 21F-17 enacted under the Dodd-Frank Act. KBR required its employees in certain internal investigations to sign confidentiality statements with language warning that they would face discipline and even be fired if they discussed the matter with outside persons without approval of KBR’s legal department. The SEC found that since these investigations included allegations of possible securities law violations, the terms violated Rule 21F-17 which prohibits companies from taking any action to impede whistleblowers from reporting possible securities violations to the SEC. KBR agreed to pay a $130,000.00 penalty to settle the SEC’s charges and adding language to its confidentiality agreements making it clear that employees are free to report possible violations to the SEC and other federal agencies without KBR’s approval or fear of retaliation.

Employees in Illinois may have stronger protections from improper confidentiality clauses restricting whistleblowing activities. The Whistleblower Act, 740 ILCS 174/10 states: “An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.” Based on the Whistleblower Act, 749 ILCS 174/10, it appears that any confidentiality clause preventing an employee from whistleblowing by reporting a suspected violation of law to the government would be unenforceable and in violation of Illinois public policy.

If you believe that your employer is improperly using a confidentiality clause to prevent you from reporting violations of Illinois or federal law to governmental authorities, contact Brian J. Graber, Ltd., at (312) 291-4648 to learn more about your rights.

US Supreme Court Rules on Denial of Accommodation Claims Under Pregnancy Discrimination Act

On March 25, 2015, in Young v. UPS, Inc., the United States Supreme Court considered the application of the second clause of the Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) amending Title VII in a denial of accommodation disparate treatment claim which states:

“. . . . women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment – related purposes . . . as other persons not so affected but similar in their ability or inability to work. . . .”

The plaintiff, a pregnant driver, was told by her doctors she could not lift more than 20 pounds during her first 20 weeks of her pregnancy or more than 10 pounds thereafter. The defendant employer required drivers like the plaintiff to be able to lift parcels weighing up 70 pounds and up to 150 pounds with assistance. Defendant employer had policies accommodating employees injured on-the-job, employees with disabilities covered under the ADA, and employees that lost certification. Plaintiff asked defendant’s capital division manager to accommodate her disability, he replied that, while she was pregnant, she was “too much of a liability” and could “not come back” until she “was no longer pregnant.” Defendant told plaintiff she could not work while under a lifting restriction forcing plaintiff to stay home without pay during most of the time she was pregnant and eventually resulting in the loss of her medical coverage. The US Supreme Court focused on plaintiff’s claim that defendant acted unlawfully in refusing to accommodate her pregnancy – related lifting restriction. The US Supreme Court rejected both the employee’s and the employer’s interpretation of the second clause of the Pregnancy Discrimination Act and outlined the method of proving a claim a denial of accommodation claim disparate treatment claim under the indirect method of proof.

The majority of the US Supreme Court held that a plaintiff alleging a denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing:

  1. She belongs to a protected class;
  2. She sought an accommodation;
  3. That the employer did not accommodate her;
  4. And that the employer did accommodate others “similar in their ability or inability to work.”

The Supreme Court held that the employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying her the accommodation. However, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates.

If the employer offers an apparently “legitimate, nondiscriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. The majority to the Supreme Court believed that a plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination. The majority of the Supreme Court further found that a plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.

The majority of the Supreme Court found that the plaintiff created a genuine issue of material fact as to whether the defendant employer provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from plaintiff’s and thereby creating an issue of fact as to the fourth prong of the prima facie case. The majority of the Supreme Court further found plaintiff introduced evidence that defendant had three separate accommodation policies (on-the-job, ADA, and DOT). The Supreme Court did not decide whether plaintiff created a genuine issue of material facts as to whether the defendant employer’s reasons for having treated plaintiff less favorably than the other non-pregnant employees was pretextual and remanded the case to the lower courts for further proceedings.

The U.S. Supreme Court’s decision in Young v. UPS, Inc., outlined the elements needed to bring a claim of denial of an accommodation under the Preganancy Discrimination Act on a theory disparate treatment liability under the indirect method of proof. However, the Illinois Human Rights Act as recently amended on January 1, 2015, provides greater protections from discrimination to pregnant Illinois employees. The Illinois Human Rights Act requires employers to consider reasonable accommodations or else face potential liability. 

If you would like to learn more about your rights to be free from pregnancy discrimination, contact Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.