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Hiring/Firing

The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions

The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Thursday, January 30, 2020.

Illinois employers have been truly shell-shocked with many new (and sometimes vague or confusing!) employment laws that became effective January 1, 2020. One big and somewhat surprising change in Illinois law is the new requirement that Illinois employers give certain special treatment to Separation and Release Agreements. The following are five commonly asked questions from our clients:

Question 1: Do we have to use a Separation and Release Agreement every time we fire an employee in Illinois?

Answer: No. This is a decision that an Illinois employer makes within its sole discretion. The only time an Illinois employer must give severance is when there is a contract or a company policy mandating it.

Question 2: If an employee is under the age of 40, must I still give the employee 21 days to think over signing a Separation and Release Agreement?

Answer: Yes, under the new Illinois Workplace Transparency Act effective January 1, 2020, regardless of age, the employee must be given 21 calendar days to consider whether he/she wants to sign the Separation and Release Agreement.

Question 3: Can the Illinois employee sign the Separation and Release Agreement at any time before the end of the 21-day review period?

Answer: Yes, the Illinois employee can knowingly and voluntarily waive in writing any further time for consideration. Caution: Such a waiver MUST be in writing.

Question 4: Under the Illinois Workplace Transparency Act effective January 1, 2020, does the Illinois employer have to give the Illinois employee (regardless of age) seven (7) calendar days to revoke his/her acceptance (i.e., change his/her mind about entering into the Separation and Release Agreement)?

Answer: Yes, the Illinois employee, regardless of age, must be given 7 calendar days to revoke his/her acceptance of a Separation and Release Agreement.

Question 5: Can the Illinois employee waive the 7 days to revoke his/her acceptance of the Separation and Release Agreement?

Answer: Yes, the 7-day revocation period can be knowingly and voluntarily waived by the employee, but only in writing. This kind of written waiver should be written in clear language and also signed and dated by the employee. A witness is advisable.

Note that under the Federal law (Older Workers Benefit Protection Act of 1990), the employee may not waive the 7-day revocation period, even if put in writing and done so willingly and voluntarily. Under Federal law, the employee must be given the 7 days in which the employee may change his/her mind after signing a Separation and Release Agreement.

Caution about Group Terminations: Under Federal law, when Separation and Release Agreements are offered to two or more departing employees (for example, as part of a reduction in force), this fact pattern creates a group termination situation under which the employer will need to use a very special kind of “group release.” For example, under Federal law, one of the requirements for a group release is that each employee be given a 45-day period to consider signing the Separation and Release Agreement.

There is sure to be much confusion this year about how the Federal law differs from Illinois state law under the new Illinois Workplace Transparency Act impacting the legalities of a Separation and Release Agreement in Illinois.

For assistance with Separation and Release Agreements, difficult terminations, IDES benefits claims, etc., contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions, Artificial Intelligence Video Interview Act – What This Means For You, Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!, Yes, Severance and Release Agreements Can Protect Employers: Use These Agreements Effectively!

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Hiring/Firing

Artificial Intelligence Video Interview Act – What This Means For You

Artificial Intelligence Video Interview Act – What This Means For You

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Monday, January 13, 2020.

The State of Illinois recently enacted legislation entitled the Artificial Intelligence Video Interview Act which took effect on January 1, 2020. Employers who use Artificial Intelligence to analyze videos of job applicants are subject to the requirements of this law. Artificial Intelligence interviewing is growing substantially in the Private Sector. A survey last year of over 1,300 HR Professionals and In-House Counsel indicated that more than thirty-five (35%) percent of those responding are using Artificial Intelligence in the recruiting and hiring process.

The Artificial Intelligence Video Interview Act applies to any Employer that may ask an applicant to record video interviews and uses an artificial intelligence analysis when considering applicants for positions based in the State of Illinois. The Act imposes the following requirements on Employers:

1. The Employer must notify each applicant before the interview that artificial intelligence may be used to analyze the applicant’s video interview and could be used to consider the applicant’s fitness for the position interviewed for; and

2. Provide each applicant with information before the interview explaining how the artificial intelligence concept works and what general characteristics are used to evaluate applicants; and

3. Obtain before the interview consent from the applicant to be evaluated by the artificial intelligence program as set forth by the Employer; and

4. The Employer may not share the applicant’s videos except with persons whose expertise and/or technology is necessary to evaluate the applicant’s fitness for a position; and

5. Employers will be required to delete an applicant’s video within thirty (30) calendar days after a receipt of a request from the applicant to delete that interview and the Employer must instruct any and all persons who have received copies of the applicant’s video interview to also delete it.

While the Act is relatively short, it does not specify or define who are the Employers covered by it nor does it define the meaning of “applicants for positions based in Illinois”. Would the law apply to an applicant who may be interviewed in the State of Illinois for a position in another State? Nor does the law provide any guidance as to “what is artificial intelligence analysis”. Is this something that will need to be defined by litigation?

It is also interesting to note that in accordance with requirements of the Equal Employment Opportunity Commission, private employers are required to retain hiring-related records for one (1) year from the date of making the record. What if an applicant, who has been subject to artificial intelligence analysis, requests that the video be destroyed within six (6) months of the interview? Does the Employer need to comply with the Artificial Intelligence Act and destroy the record as requested by the applicant within thirty (30) calendar days as stated in the Act and violate the requirement of record retention as created by the Equal Employment Opportunity Commission? We are getting pretty close to putting Employers in a situation of making the proverbial “Hobson choice”.

Certainly, the future of this legislation will be determined through future court analysis. What that will bring is anyone’s guess!

Questions? Contact attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

Related Posts: The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions, Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions, Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!, Yes, Severance and Release Agreements Can Protect Employers: Use These Agreements Effectively!

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Hiring/Firing

Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions

Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Friday, January 24, 2020.

Effective January 1, 2020, the Illinois Human Rights Act has been amended regarding the use of arrest records by employers.

Unless otherwise authorized by law, it is a civil rights violation under the Illinois Human Rights Act to use arrest records in employment decisions.

  • Covered entities: Any employer, employment agency or labor organization as defined under the Act.
  • Prohibited conduct: Arrest records can NOT be used as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment.

Can Use Felony Convictions:

A state agency, unit of local government or school districts, or private organization (employer) can request or utilize sealed felony conviction information obtained from the Illinois Department of State Police under the Illinois Criminal Identification Act or state or federal laws or regulations that require criminal background checks in evaluation of the qualification and character of an employee or a prospective employee.

Information other than the arrest records CAN be used: Employers and other covered entities CAN obtain or use other information (other than the arrest records) which indicate that a person actually engaged in the conduct for which he or she was arrested.

Based upon the above, Illinois employers should be cautious in the use of criminal information for employment decisions. Any criminal inquiry should comply with Illinois Ban the Box law, which dictates such an inquiry can only be made after an offer of employment or the applicant has been deemed qualified and selected for an interview.

Practical Tip: Companies should advise their criminal background check vendors to NOT provide any arrest record information in their reports.

Questions? Contact attorney Anthony J. Caruso, Jr., at our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

Related Posts: The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions, Artificial Intelligence Video Interview Act – What This Means For You, Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!, Yes, Severance and Release Agreements Can Protect Employers: Use These Agreements Effectively!

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Hiring/Firing

Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!

Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Tuesday, November 19, 2019.

As many readers may be aware, there are several new and significant employment laws that were recently passed in Illinois which become effective January 1, 2020.

One of these new Illinois laws, the Workplace Transparency Act, places certain strict legal requirements on Illinois employers in the use of Severance and Release Agreements.

21 DAYS TO CONSIDER: Under the Illinois Workplace Transparency Act, effective January 1, 2020, the Illinois employee must be offered, in writing, 21 days to think over signing the Separation and Release Agreement regardless of the age of the Illinois employee. This legal requirement is brand new!

Comparison to Federal law: Under Federal law (the Older Workers Benefit Protection Act of 1990), only employees who are 40 years of age and older are required to be given 21 days in writing to think over signing a Separation and Release Agreement (or 45 days to think it over if it is a “group release”-in other words, two or more employees terminated at the same time from the same decisional unit).

Under the Workplace Transparency Act, Illinois employees (regardless of age) must be given 21 calendar days to consider if they want to sign the Separation and Release Agreement, although the Illinois employee may sign the Separation and Release Agreement at any time before the end of the 21-day review period, knowingly and voluntarily waiving in writing any further time for consideration. Note that such a waiver must be in writing!! A trap for the unwary Illinois employer!

7 DAYS TO REVOKE: Under the Workplace Transparency Act, effective January 1, 2020, the Illinois employee (regardless of age) must also be given 7 calendar days to revoke his/her acceptance (change his or her mind) of the Separation and Release Agreement. This 7-day revocation period can be “knowingly and voluntarily” waived IN WRITING.

Comparison to Federal law: Under the Federal law (Older Workers Benefit Protection Act of 1990), the employee may not waive the 7-day revocation period, even if put in writing and done so willingly and voluntarily. Under Federal law, the employee must be given the 7 days in which the employee may change his/her mind. This Federal legal right cannot be waived!

RIGHT TO REVIEW BY ATTORNEY OR REPRESENTATIVE: Also, under the Workplace Transparency Act, effective January 1, 2020, the Illinois employer must notify the employee, in writing, of the employee’s right to have an attorney or representative of his/her choice review the Separation and Release Agreement before it is executed (i.e., before the parties sign the agreement).

Caution: Different states can (and do) have different laws about separation and release agreements. Therefore, relevant state laws should be carefully researched before entering into a Separation and Release Agreement. Laws in this area are changing rapidly, granting additional legal protections to the employee.

For assistance with Separation and Release Agreements, difficult terminations, IDES benefits claims, etc., contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions, Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions, Artificial Intelligence Video Interview Act – What This Means For You, Yes, Severance and Release Agreements Can Protect Employers: Use These Agreements Effectively!

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Hiring/Firing

Illinois Adopts Salary History Inquiry Ban

Illinois Adopts Salary History Inquiry Ban

By Jennifer Adams Murphy of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Tuesday, August 6, 2019.

◊The Impact On Your Business Practices ◊

Governor Pritzker signed House Bill 834 last week which amends the Illinois Equal Pay Act to prohibit Illinois employers from seeking an applicant’s compensation history as a condition of employment. The Bill also prohibits an employer from requiring employees to sign agreements which would prevent them from disclosing their compensation to others. (A similar bill had been vetoed by former Governor Rauner in 2017).

The purpose of the salary inquiry ban is to prevent the presumably (and statistically) lower compensation history of women and African Americans from continuing to depress earnings potential. Likewise, the Bill’s provision prohibiting employers from requiring employees to sign non-disclosure agreements regarding their wage/salary, removes impediments to employees identifying race and gender-based compensation discrepancies.

Actions Prohibited

Specifically, the law prohibits employers and employment agencies from:

  1. Screening job applicants based on their current or prior wage/salary history, including benefits and other compensation by requiring that the compensation history satisfy minimum or maximum requirements;
  2. Requesting or requiring a wage or salary history as a condition of being considered for employment, as a condition of being interviewed, as a condition of continuing to be considered for an offer of employment or as a condition of an offer of employment or an offer of compensation;
  3. Requesting or requiring that an applicant disclose wage or salary history as a condition of employment;
  4. Seeking wage/salary history, including benefits or other compensation, of a job applicant from any current or former employer.

In other words, unless subject to one of the following exclusions, employers may no longer request compensation history from applicants or from their current or former employers.

Exclusions

These provisions are inapplicable where: (a) the employee’s wage/salary information is a matter of public record through the Freedom of Information Act or is otherwise publicly available (for example, certain public sector employees, executives at publicly traded companies and not-for-profit corporations); or where, (b) the job applicant is a current employee applying for another position with the same employer. In addition, the Bill makes clear that it does not prohibit an employer from (a) providing information regarding the wages/salary, benefits and other compensation offered for a particular position; and from (b) engaging in discussions with an applicant regarding their expectations with respect to wage/salary, benefits and other compensation.

An employer does not violate the Act if an applicant or employee voluntarily, and without prompting, discloses their current or prior wage/salary, benefits and other compensation information, provided that the employer does not rely on the information as a factor in determining whether to offer the applicant employment, in making an offer of compensation or in determining future wages/salary, benefits or other compensation. The proviso is the tricky bit – it does not take much of an imagination to recognize the liability risk where an employee voluntarily discloses their past compensation and is then dissatisfied with the compensation offered for the position for which they are applying.

Damages and Penalties

Private Action

If an employer violates these terms, the employee may sue and recover compensatory damages, “special” damages, not to exceed $10,000 as well as attorney’s fees. An employee may only recover compensatory damages to the extent that they exceed any awarded special damages.

Department Action

The Department has authority to supervise payment of unpaid damages and penalties and to seek injunctive relief as well as to file a lawsuit to recover substantial penalties up to $5,000 per violation of this law.

Statute of Limitations

Employees may bring an action within 5 years from the date of the violation.

Effective Date

September 29, 2019

It is extremely important that all employers with employees in the state of Illinois remove questions on employment applications requesting salary or wage history and cease all screening and interview questions related to salary or wage history. Contact Jennifer Murphy if you would like an example of a compliant application form.

Questions? Contact attorney Jennifer Adams Murphy at (630) 377-1554 or by email at jemurphy@wesselssherman.com

Related Posts: The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions, Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions, Artificial Intelligence Video Interview Act – What This Means For You, Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!

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Hiring/Firing

Yes, Severance and Release Agreements Can Protect Employers: Use These Agreements Effectively!

Yes, Severance and Release Agreements Can Protect Employers: Use These Agreements Effectively!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Wednesday, August 28, 2019.

If an employer is planning on terminating an employee whom the employer feels may be litigious or a “high-risk termination,” then the employer may want the employee to sign a carefully prepared severance and release agreement. Giving an employee severance (i.e., money or something of value) in exchange for the employee signing a release of all claims against the employer is a legally acceptable mechanism for an employer to avoid potential litigation.

What is a high-risk termination? Examples of “high-risk” include: an employee out on workers’ compensation leave; a pregnant employee; an employee who has physical or mental disabilities; an employee who is 40 years of age or older; an employee who is a member of a minority race, religion or national origin. There may be multiple reasons for considering an employee “high-risk” with regard to a proposed termination. Other examples of “high-risk” include: an employee who has lodged a sex harassment complaint; an employee who has made a complaint about the company to a government agency; an employee who has recently been out on Family and Medical Leave.

Severance is not required in Illinois: Surprising to many Illinois employers, there are no actual legal requirements that an employer must give any severance to a departing employee. This is a commonly believed myth. Of course, if an employer has made a contractual promise in an offer letter or in a written employment agreement, then the employer must abide by the terms of that offer letter or contract. Usually, employment contracts or offer letters for only very highly paid or key employees contain mention of severance if the employee departs from the company for any reason. It is becoming a rarity to promise severance.

In today’s work world, for the vast majority of Illinois employers, severance is completely discretionary on the part of the employer. This means that when an employee quits or is fired, the employer is under no legal obligation whatsoever to give the departing employee any severance at all.

Why would an employer want to offer severance to a departing employee? Usually it is because the employer perceives the departing employee to be “high-risk.” Sometimes, it is because the employer wants “closure” in terminating the employee. Occasionally employers offer severance to “reward” a faithful longtime employee who is being terminated after many years of dedicated service (this situation often arises in a “restructuring” of the workforce).

Giving an employee severance (it could be any amount, within the sole discretion of the employer) in exchange for the employee signing a release of all claims against the company is a way an employer buys protection from potential litigation.

Many legal issues impact a severance and release agreement: If an employer decides to offer a severance and release agreement to a departing employee, it is extremely important that the employer have an experienced employment lawyer carefully review that document. There are many legal issues which impact the legal enforceability of such an agreement. For example, departing employees who are 40 years or older must have special terminology (required by Federal law) in the release agreement for it to be legally enforceable.

Group release: Also, if an employer is planning on terminating/laying off a group of employees (a group is defined as two or more departing employees), and even one of the employees is 40 years of age or older, then a special group release must be drafted in order for it to be enforceable in such a situation. Special wording in the group release (and a special information attachment) is required by Federal law.

How much severance? Clients often ask me how much severance they should give the departing employee. My standard response is: give the departing employee a generous enough amount so that hopefully the employee will want to sign the severance and release agreement. If the employer anticipates that the departing employee is likely going to negotiate the amount of severance, then the employer might start off with an amount lower than the actual amount the employer is willing to offer.

Severance can be a remarkably effective tool. Companies should be aware that this option exists and can give the company great protection in high risk termination situations. For assistance with difficult terminations, release agreements, IDES benefits claims, etc., contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions, Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions, Artificial Intelligence Video Interview Act – What This Means For You, Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!

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Arbitration Harassment Hiring/Firing Non-Compete

Illinois Workplace Transparency Act

Illinois Workplace Transparency Act

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Harassment on Monday, August 26, 2019.

On June 2, 2019, the Illinois General Assembly approved the Workplace Transparency Act providing certain protections concerning sexual harassment in the workplace and imposing significant new obligations on Illinois Employers. This Bill was signed into law by Governor Pritzker in June 2019 and the provision of the new bill become effective January 1, 2020.

The Workplace Transparency Act prohibits Employers from entering into any Employment Agreement that includes non-disclosure or non-disparagement clauses dealing with claims for harassment or discrimination. The Workplace Transparency Act would permit such clauses dealing with claims of harassment or discrimination in Settlement and Separation Agreements so long as:

  1. The harassment or discrimination claims arose before the Agreement was signed; and
  2. The Clauses are mutually agreed upon and benefit to both parties; and
  3. The Employee/Applicant is given twenty-one (21) calendar days to review the Agreement before its execution; and
  4. The Employee/Applicant has seven (7) calendar days after signing the Agreement to revoke it.

The Workplace Transparency Act also prohibits the ability to enforce an Arbitration Agreement unless that Arbitration Agreement excludes discrimination and harassment claims, and Arbitration Agreements drafted by Employers may not shorten applicable statute of limitation periods for those claims or limit an Employee’s right to assert those claims under Federal and State Law-i.e., by prohibiting class actions. This prohibition of class actions seems to be inconsistent with recent United Supreme Court precedence (Lamps Plus incorporated v. Varela, Epic Systems Corporation v. Lewis and Kindred Nursing Senators LP v. Clark,) but obviously whether they are truly in conflict will have to wait for their court action.

One of the most troubling concepts of the Workplace Transparency Act is the requirement for Mandatory Annual Disclosures and required Sexual Harassment Training.

Starting July 1, 2020, the Workplace Transparency Act requires all private or public employers, labor organizations and parties to a public contract to report annually any settlement, adverse judgment or administrative ruling against them involving harassment or discrimination to the Illinois Department of Human Rights for the preceding calendar year. This information must be reported:

  1. The total number of adverse judgments or adverse rulings during the preceding year; and
  2. Whether any equitable relief was ordered against the Employer; and
  3. How many adverse judgments or administrative ruling in each of the following specific categories occurred in the previous year:
  • Sexual Harassment;
  • Discrimination or harassment on the basis of sex;
  • Discrimination or harassment on the basis of race, color or national origin;
  • Discrimination or harassment on the basis of religion;
  • Discrimination or harassment on the basis of age;
  • Discrimination or harassment on the basis of disability;
  • Discrimination or harassment on the basis of military status or unfavorable discharge;
  • Discrimination or harassment on the basis of sexual orientation or gender identity;
  • Discrimination or harassment on the basis of any other characteristic protected by the Illinois Human Rights Act.

As well, under the Act, every Employer with Employees working in the State of Illinois will be required annually to provide its Employees with a Sexual Harassment Prevention Training Program that it creates or, in the alternative, the Employer may use the sexual harassment prevention training model developed by the Illinois Department of Human Rights.

If an Employer fails to make the required disclosures dealing with adverse judgment or administrative ruling or fails to provide the sexual harassment training, an Employer may be subject to penalties for the failure to report or failure to train that. An Employer with fewer than four (4) Employees will be subject to an initial penalty of Five Hundred ($500.00) dollars for the first offense, a penalty not to exceed One Thousand ($1,000.00) dollars for the second offense and a penalty not to exceed Three Thousand ($3,000.00) dollars for the third or subsequent offense. If the Employer has four (4) or more employees, the first offense cost is One Thousand ($1,000.00) dollars the second offense cost is Three Thousand ($3,000.00) dollars and the third or subsequent offense cost is Five Thousand ($5,000.00) dollars.

For purposes of this Act, Employer is defined as “any person employing one or more employees in the State of Illinois”;

Settlement means “written commitment or agreement that an Employer owes to an Employee who has been a victim of sexual harassment as discrimination compensation or other consideration”; and

Adverse Judgment or Administrative Ruling means “final non-appealable ruling or decision in favor of Employee”.

Obviously, the obligations of an Employer under the Workplace Transparency Act have the potential of greatly increasing the “cost to do business” in the State of Illinois.

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.

Related Posts: Internal Harassment Complaints, Seventh Circuit Decision-Use Of The “N-Word”, Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers, Alert: Pending Legislation in Illinois to Require Sexual Harassment Training of all Restaurant Employees

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Hiring/Firing

Landmark Decision Defines Cause Of Action For “Negligent Supervision” Of Employees, Personal Liability For Supervisors

Landmark Decision Defines Cause Of Action For “Negligent Supervision” Of Employees, Personal Liability For Supervisors

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Thursday, May 23, 2019.

On May 23, 2019 the Illinois Supreme Court ruled, in Jane Doe v. Chad Coe et al. – a case of first impression for the court – what elements are necessary to pursue a lawsuit for “negligent supervision” of an employee. Most state courts recognize claims against employers for negligence regarding their employees who harm others, and Illinois is no exception. “Negligent hiring” generally involves hiring an employee who foreseeably would harm someone, who in fact does go on to harm someone (e.g. hiring an individual to work at a day-care who is known, or through a reasonable background check should have been known, was a convicted pedophile who poses a risk to children, if the employee later molests a child). Conversely, a claim of “negligent retention” may exist where an employer fails to discharge an employee known (or who reasonably should have been known) to present a foreseeable risk to others, who then goes on to do harm. Yes, that’s right – employers sometimes have a legal duty to fire an employee! The recent Coe case involved claims for both negligent hiring and negligent retention, but also a claim for “negligent supervision.” As the name suggests, a claim for negligent supervision involves an employer’s failure to properly supervise employee(s) to avoid foreseeable risks of harm to others. While the Illinois Supreme Court had previously recognized the existence of a claim for negligent supervision, it had not addressed what elements are required to pursue such a claim. In doing so the court paved a relatively easy path for plaintiffs to sue not only employers for negligent supervision, but also individuals who direct and control workers. Employers, owners, managers and front-line supervisors in Illinois will want to take notice of this important decision and pay particular attention to the kinds of specific responsibilities expected of them (perhaps even doing a “Google search” on some applicants).

The Coe case began in Kane County Circuit Court. The plaintiff, named under the alias “Jane Doe” because she was a 15 year old minor at the time, was allegedly sexually molested by a 31 year old youth pastor at the First Congregational Church of Dundee (FCCD). The lawsuit consisted of numerous claims, including allegations of negligent hiring, negligent retention and negligent supervision (of Coe) against the FCCD as well as James, the church’s pastor and allegedly Coe’s direct supervisor. The trial court twice dismissed these claims on the pleadings for failing to set forth facts sufficient to permit the case to proceed. Among other things, the plaintiff alleged that defendants failed to conduct a background check and that a simple Google search would have revealed before Coe was hired that he visited certain adult and child pornography websites. The complaint also alleged that multiple people, including volunteers, employees and church members, had observed Coe’s inappropriate behavior toward young girls, including plaintiff Doe and had reported their concerns to James, but nothing was done about it. Despite these alarming allegations it was necessary to appeal the case before the lawsuit was allowed to proceed. Here are some poignant quotes from the Supreme Court of Illinois’ decision:

  • “Negligent hiring, negligent supervision, and negligent retention are all direct causes of action against the employer for [its] misconduct in failing to reasonably hire, supervise, or retain the employee.”
  • “…the initiation and existence of an employment relationship imposes a duty upon the employer to exercise reasonable care in employing only competent individuals. These duties are to all foreseeable individuals who might be impacted by the employee or his employment, such as a customer of a defendant business or [in this case] a member of a defendant church.”
  • “To the extent that plaintiffs have pled and can prove that FCCD, James, or both hired, supervised, and retained Coe, we find that they had a duty to  do so reasonably.” 
  • The court acknowledged that a background check is unlikely to produce an individual’s Internet browsing history, “but that is a factual dispute” [for trial]. The court made specific reference to “[m]yriad businesses that offer to perform detailed background checks” these days.
  • Another factual dispute the court noted, was plaintiff’s allegation that a cursory Google search would have put defendants on notice of Coe’s sexual interest in children, for he used the same pseudonym with church members that he used in visiting pornographic sites.
  • The court articulated only three elements to state a claim for negligent supervision: “(1) the defendant had a duty to supervise the harming party, (2) the defendant negligently supervised the harming party, and (3) such negligence proximately caused the plaintiff’s injuries.”
  • “We do not require that the supervisor have prior notice of a particular unfitness because reasonable performance of the duty to supervise will put the supervisor on notice of an employee’s conduct or perhaps prevent the employee’s tortious conduct all together…. only general foreseeability is required in an employment context.”

In summary, this decision by the highest court in Illinois (thus, binding on all courts in that state) serves as a warning to employers that certain duties are imposed on them by law from the moment an employment relationship exists and throughout its existence. While not mandated in all cases, or perhaps not even this case depending on what happens at trial, the court opened the door to the possibility that failing to go beyond a standard background search, for example conducting a Google or other on-line search before hiring applicants for certain jobs, may constitute negligence. Finally, the Coe decision paved the way for plaintiffs to sue employers, as well as any individuals who hire, supervise, manage employees, as defendants in negligent hiring, supervision, and/or retention lawsuits.

Questions? Contact Attorney James B. Sherman in our Minneapolis office at (952) 746-1700 or by email at jasherman@wesselssherman.com.

Related Posts: The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions, Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions, Artificial Intelligence Video Interview Act – What This Means For You, Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!

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Hiring/Firing

Resignation or Discharge?!?!: How the Illinois Department of Employment Security Actually Evaluates this Question

Resignation or Discharge?!?!: How the Illinois Department of Employment Security Actually Evaluates this Question

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Wednesday, October 10, 2018.

Many times clients/employers struggle over whether they should graciously offer the option of resigning to an employee whom they actually wish to fire. The client/employer reasons that the fired employee might prefer to tell “the world” that he himself has resigned from his job, rather than admitting that he was fired. But the client/employer sometimes worries that offering this option of resigning may have some adverse legal impact for the employer/company.

NO LEGAL DISADVANTAGE TO PERMITTING A RESIGNATION: There is usually no legal disadvantage (except under unusual circumstances) to permitting an employee to resign. Then he can tell people in his life (and any future employers) that it was his idea to resign–he is simply “looking for other opportunities” and that is why he left his prior job.

DID THE FORMER EMPLOYEE HAVE THE OPTION TO REMAIN IN EMPLOYMENT: When a former employee files for unemployment insurance benefits, the Illinois Department of Employment of Security (IDES) asks: “Were you fired or did you quit?” When the former employee says that he quit, the IDES will often ask if he had the option of remaining in employment.

IF FORMER EMPLOYEE DID NOT HAVE THE OPTION TO REMAIN IN EMPLOYMENT, THEN IDES CONSIDERS IT A DISCHARGE (REGARDLESS OF LABEL USED BY EMPLOYER): If the employee did not have the option of remaining in employment, then the employee is considered by the IDES to have been fired (regardless of the label the employer used when it separated the employee from employment).

In other words, labels really do not matter to the IDES-it is really a question of whether the employee was given the option of remaining in employment.

Even if an employee is willing to sign a statement that he is resigning when he is terminated, the IDES doesn’t care. The IDES looks beyond such a statement and asks if the employee could have remained in employment. So when an employee hands in a “voluntary” letter of resignation, that employee can usually still get unemployment insurance benefits if, in fact, the employee was told by the employer that he could not remain in employment.

Of course, it is the IDES (not the employer) that makes the judgment about who actually gets unemployment insurance benefits. Eligibility for unemployment insurance benefits rests on a wide range of legal issues. The nature of the separation from employment is just one factor to consider.

For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

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Expunged Conviction Not A “Conviction” Under WFEA

Expunged Conviction Not A “Conviction” Under WFEA

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Tuesday, March 20, 2018.

HR professionals that conduct criminal background checks on prospective employees are well aware of (or should be) the Wisconsin Fair Employment Act’s prohibition against discrimination on the basis of an individual’s arrest or conviction record. Under the WFEA, an employer may not discriminate against an employee or prospective employee on the basis of a pending arrest or conviction, unless the circumstances of the arrest/conviction are substantially related to the circumstances of the proposed employment. Easy enough? Not really.

For example, what if a conviction, even if substantially related to the individual’s proposed employment, has been expunged from his record? Under the Wisconsin expungement statute, Wis. Stat. Sec. 973.015(2m)(g), individuals who commit crimes before the age of 25 may request expungement of the offense from their record if it is determined that “the person will benefit and society will not be harmed.” Once an offense has been expunged, all references to the individual’s name and identity are to be obliterated from the record, which allows certain offenders to “wipe the slate clean of their offenses and present themselves to the world – including future employers – unmarked by their past wrongdoing.” State v. Hemp, 353 Wis.2d 146, 157 (Wis. App. 2014).

In Staten v. Holton Manor, ERD Case No. 2013030311 (LIRC, Jan. 30, 2018), the Wisconsin Labor and Industry Review Commission considered the relation between the expungement statute and a “conviction record” under the WFEA, finding that a conviction that has been expunged cannot be considered by an employer under any circumstances, even if the underlying expunged offense was “substantially related” to the employment. The Commission also found that non-criminal ordinance violations (e.g., municipal citations) constitute “other offenses” under the statute and may be considered when reviewing an individual’s record. Thus, a municipal conviction for disorderly conduct arising out of a confrontation between a prospective employee and her boyfriend (in which she lost her temper and stuck him several times) was found “substantially related” to her proposed employment as a certified nursing assistant, since the character traits revealed by the conviction include a tendency to lose control and commit acts of violence against someone who angered or displeased her – such as a vulnerable, elderly resident of a nursing home.

Attempting to discern the relation between a prospective employee’s pending arrest (you can NEVER consider an arrest that did not result in a conviction) or conviction and his/her proposed employment can be very tricky and not nearly as obvious as you may think. Employers must take special caution when making these decisions, fully cognizant of the prohibitions of the Wisconsin Fair Employment Act and how it has been interpreted.

If you have any questions feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: The New Illinois Law Regarding Severance And Release Agreements: Five Commonly Asked Questions, Illinois Employers Have New Restrictions on the Use of Arrest Records in Employment Decisions, Artificial Intelligence Video Interview Act – What This Means For You, Illinois Employers Alert!: There is A New Illinois Law regarding Severance and Release Agreements!

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