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Linda Horras practices exclusively in the area of employment defense. She partners with clients to guide and counsel them on difficult employee …

Showing 12 posts by Linda K. Horras.

Employee's Emotional Distress Claim Not Pre-empted but Not Actionable Emotional Distress Either

The United States Court of Appeals for the 7th Circuit recently addressed whether common law tort claims arising during the employment relationship are pre-empted by the Illinois Human Rights Act simply because they share similar fact patterns to claims of discrimination or harassment in Richards v. U.S. Steel. The answer is no. More ›

EEOC Seeks Public Input on Proposed Enforcement Guidance on Unlawful Harassment

The EEOC issued Proposed Enforcement Guidance on Unlawful Harassment on January 10, 2017. It is designed to consolidate numerous agency guidelines into one document and addresses hostile work environment harassment prohibited by statutes enforced by the EEOC. The Guidance examines three primary elements of a harassment claim. First, is the conduct based on a legally protected status; second, is the conduct sufficiently severe or pervasive to create a hostile work environment; and third, is there a basis for employer liability. The 75-page treatise covers key case law since the Supreme Court first recognized harassment as an actionable form of discrimination in 1986. More ›

(A Little) More to Digest on Criminal Background Checks

Last month, we discussed the importance of maintaining employment files, including records on the use of criminal background information in the employment process. We suggested steps to ensure that your use of such information is based on a business necessity that will pass agency muster. We'd like to supplement those suggestions based on a recent presentation by EEOC Commissioner Constance Barker.  More ›

EEOC Uses its Record Keeping Requirements to Police use of Criminal Background Checks

We don't think about personnel files — we just have them. Everything from employment applications to benefits enrollment forms to discipline and discharge documents goes into those files. But did you know that the EEOC requires employers to keep all personnel and employment records for at least one year?  More ›

Eighth Circuit: Doctor Is Unable to Maintain Employment Claims due to Determination of Independent Contractor Status

From 1991 until 2011, Larry Alexander worked as a pathologist for Avera St. Luke's Hospital in South Dakota. Under the terms of his contract, Alexander was an independent contractor free from control of Avera. Alexander paid his own taxes, maintained his own malpractice insurance and paid for his own professional licenses. Avera required him to have medical privileges at its facility, billed patients on his behalf, and paid Alexander in equal monthly payments for his services. More ›

Third Circuit Opinion Highlights Importance of Properly Designating FMLA Leave

Lisa Lupyan was an instructor at the defendant college. After showing signs of depression, her employer encouraged her to take a leave to deal with it. Lupyan met with an administrative supervisor, Sherri Hixson, on December 19, 2007, who told her to submit paperwork indicating that she was requesting “Family Medical Leave.” Hixson set Lupyan’s projected return to work date to April 1, 2008, based on Lupyan’s Certification of Health Provider. Lupyan’s FMLA rights were not discussed during this meeting although the college contends that it mailed a letter to her later that day advising her that she was on FMLA leave. Lupyan denies that she received this letter and denies that she had any knowledge that she was on FMLA leave.  More ›

Asking About Easier jobs Triggers Employer’s duty to Participate in Interactive Process

An employee of a printing and copying company was diagnosed with stage four cancer, and was concerned that she would be unable to perform the physical aspects of her job. After her diagnosis, she spoke with her supervisor, stated that she wanted to keep working and asked whether there were any other easier jobs available. The supervisor stated that he did not know of any, nor did he direct her to human resources. Twenty minutes after the call with her supervisor, the employee resigned. She subsequently filed a failure to accommodate claim under the Americans with Disabilities Act ("DA). In rejecting the employer's motion for summary judgment, the court held that the employer's obligation to participate in the interactive process begins as soon as it is placed on notice of a disability. Ultimately, the court held that the ADA obligated the employer to push the process forward once the employee informed it of her diagnosis and the fact that she wanted to keep working. This case demonstrates the importance of participating in, and clearly documenting the steps taken during, the interactive process. Once employers learn of an employee's disability, steps must be taken to ensure that interactive process begins and is effective.

For more information read Suvada v. Gordon Flesch Co., Inc., No. 11 C 07892 (N.D. Ill. Sep. 13, 2013).

Court Finds that Employer’s Failure to Return Employee to work Prior to Conclusion of FMLA Leave does not Amount to Interference

In this case, a hotel maintenance employee who had worked for the employer for over 20 years had a history of vision problems. His employer regularly accommodated these problems by ensuring that the employee’s schedule and assignments were copied in large print. Later, the employee suffered an injury, which required him to take leave. The hotel provided him with required information under the Family and Medical Leave Act (FMLA) and approved 12 weeks of leave. More ›

Seventh Circuit Decertifies Class due to Individualized Damage Calculations

The Seventh Circuit Court of Appeals recently issued an opinion upholding a district court’s de-certification of a collective and class action under the Fair Labor Standards Act and Illinois state wage laws. While the opinion did not deal with typical Rule 23 or Section 16 issues, such as commonality or a common employer policy, it is a positive case for employers trying to get out from under lengthy, expensive class litigation. More ›

Rotational Employee Unsuccessful on FMLA Interference Claim Based upon Leave Calculations

Where employees do not work traditional work schedules, calculating leave under the Family and Medical Leave Act (FMLA) can be tricky.   More ›

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