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amccall@hinshawlaw.com
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Ambrose McCall brings more than three decades of experience to his robust employment, commercial and professional liability litigation practice …

Showing 21 posts by Ambrose V. McCall.

Seventh Circuit Requires Trial of Respondeat Superior Claim Over Sexual Assault

In Zander v. Orlich, No. 17-2792, (7th Cir. Oct. 30, 2018), the U.S. Court of Appeals for the Seventh Circuit decided how to construe and apply Indiana state tort law regarding vicarious liability.  The plaintiff in Zander was sexually assaulted by Lake County Indiana Deputy Sheriff Orlich.

When Deputy Sheriff Orlich responded to a domestic disturbance call placed by Zander's husband, he directed Zander to leave the home where the disturbance was occurring and to stay at her second home. Orlich received permission from his supervising officer to take Zander to her second home, but the home's electric panel was dismantled in addition to a host of other problems. After Orlich turned on the electricity and water heater, he tried and failed to fix the furnace. While attempting to perform repairs, Orlich told Zander that she could not return to her home for several hours. Orlich then left Zander, but 10 to 15 minutes later he returned to where Zander was staying, removed his uniform, and sexually assaulted Zander.  More ›

Implementing a Policy Review to Ensure You Are Protected Under The Computer Fraud and Abuse Act, Part 2: How to Conduct Your Policy Review

In Part 1 of this series, we discussed the Computer Fraud and Abuse Act (“CFAA”) and situations that are readily prohibited by the CFAA, such as when current or former employees gain access to an employer's databases or files to harm the employer or damage its business contacts. We also discussed how a policy review could be beneficial for your workplace. In Part 2, we will discuss how to conduct your policy review and questions you should consider throughout the review in more detail here. More ›

Implementing a Policy Review to Ensure You Are Protected Under The Computer Fraud and Abuse Act, Part 1: Why You Should Conduct a Policy Review

Ambrose McCall will be presenting "The Computer Fraud and Abuse Act: Navigating the New Normal of Workplace Technology and Cybersecurity" on Thursday, October 12, 2017, at the 22nd Annual Labor & Employment Seminar. This year's Seminar will be held at the Hilton Chicago-Northbrook in Northbrook, Illinois. Please visit our website for more details. More ›

Are Employee Wellness Programs OK Under the ADA? EEOC Says Yes, But...

Until recently, businesses looking to make sure that their employee wellness programs comply with the ADA were without much help from the EEOC — besides a series of surprisingly unhelpful opinion letters and a one-sentence answer in an online Q&A stating that voluntary wellness programs must not “require participation, nor penalize employees who do not participate,” the EEOC has not made entirely clear how the ADA does or does not restrict such programs. On April 20, however, the EEOC took an initial step towards clarity when it issued proposed ADA rules regarding these cost-saving measures — weight loss programs, smoking cessation efforts, health risk assessments, and so on. More ›

Sixth Circuit Discusses ADA and Work Related Medical Exams Involving Psychological Issues

At some point in time, most employers or managers face a situation where an employee exhibits odd or off-putting behaviors, or behaviors that suggest the possibility that an employee could harm herself or other persons at the workplace. Navigating the maze of potential proactive and reactive measures to take has never been easy, and not much case law on the topic exists, especially outside the sphere of public safety positions in fire and police departments. Moreover, the EEOC has not specifically updated its March 25, 1997 Guidance on the Americans with Disabilities Act ("ADA") and Psychiatric Disabilities, other than noting that the 2008 amendments to the ADA change how the Act defines "disability." This state of affairs provides little direction or comfort to employers. Those who review the cited EEOC Guidance can also fairly say that the discussions contained in the Guidance can at times raise more questions than they answer. More ›

Court Affirms Employer's Authority to Schedule Workweek under FLSA

A core management task for employers is to properly schedule the workweek for their employees. If done correctly, an employer can reduce its obligation to pay overtime wages to its hourly, non-exempt employees. But an employer that fumbles in its scheduling of the workweek for its hourly employees can sustain liability under the Fair Labor Standards Act for unpaid overtime wages, liquidated damages, and attorney's fees.  29 U.S.C. Section 201 et seq. The U.S. Court of Appeals, Fifth Circuit, recently affirmed a summary judgment entered in favor of an employer that permanently changed its workweek schedule for a group of employees which had the effect of decreasing the amount of overtime wages that would have otherwise been paid by the employer. The employees had filed a class action complaint. More ›

The Affordable Care Act’s Contraceptive Care Mandate Applies to Covered For-Profit Corporate Employers

On October 24, 2013, the U.S. Court of Appeals, Sixth Circuit, held that a for-profit natural foods corporation could not establish that it can exercise religion, and therefore could not use the Religious Freedom Restoration Act, (RFRA), as a vehicle to challenge the contraceptive care requirements created by the Affordable Care Act. Eden Foods, Inc. v. Sebelius, No. 13-1677 (6th Cir. Oct. 24, 2013). In addition, the Sixth Circuit held that the plaintiff corporation's chairman, president and sole shareholder lacked standing to challenge the obligations solely imposed upon the corporate employer. The framing of the issues by the Court points out that what tripped up plaintiffs' attempt to obtain a court order exempting the employer from the contraceptive care requirements did not arise from the U.S. Constitution. More ›

New Jersey Federal Court Finds that SCA Exception Applies to Facebook Posting Shared by Co-Employee

In the case of Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-cv-03305 (WJM) (D. N.J. Aug. 20, 2013), a federal district court in New Jersey granted an employer's motion for summary judgment, and thereby dismissed the employee's claims of violations of the federal Stored Communications Act, (SCA"), the Family Medical Leave Act, and other claims the employee made under New Jersey law alleging discrimination, invasion of privacy, and protected "whistle blowing" activity. We will focus today on the court's analysis and application of the SCA to the sharing of screen shots from the employee's Facebook postings. Before reaching that discussion, however, the court first had to review the relevant facts.  More ›

Jury Issue Exists over Employment Termination Following Funeral Attendance Overseas

In Adeyeye v. Heartland Sweeteners, LLC, (7th Cir. July 31, 2013), the Seventh Circuit reversed a summary judgment that a trial court granted in favor of the employer. Title VII of the Civil Rights Act of 1964 bars employment discrimination on the basis of religion. As a result, employers must reasonably accommodate employees who make requests to partake in religious practices or acts (Slip op. at 1-2). In this case, the employee sought several weeks of unpaid leave to attend his father's funeral overseas in Nigeria, and to lead the performance of the burial rites.  Id. at 2. The employee explained that his attendance at the funeral rites was "compulsory" and that if he did not show up to perform the rites, he and his family would sustain a spiritual death. Id. The employer denied the requests for unpaid leave. The employee attended the funeral ceremony in Nigeria and his employment was terminated upon his return appearance at his workplace. The trial court granted the employer summary judgment based on its finding that the employee's two letters failed to provide any notice of the religious character inherent in his requests for unpaid leave. Id. at 2. The Seventh Circuit disagreed and found the same letters and record adequately created disputed issues of material fact over whether the employer had notice of the religious matter associated with the request for leave, and whether the employee had a sincerely held religious belief, as well as over causation and the employer's claimed undue hardship. More ›

U.S. Supreme Court Upholds Arbitrator’s Decision Finding that Contract Provides for Class Arbitration

One U.S. Supreme Court decision has not received great attention from the media, but it may have considerable impact on how employers structure their relationships with employees. In this instance, the issue is what authority does an arbitrator have to interpret contractual terms so as to provide for class arbitration. Justice Kagan, without dissent, explained that the Court viewed arbitration clauses that provide for all civil actions to be arbitrated as giving arbitrators the authority to find a contractual basis to support class arbitration. More ›

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