United States: Employment, Labor & Benefits Update - February 2017

Annual Seminar Reminder

MFEM's Immigration Group will hold its 2017 Annual Immigration Law Update Seminar on Friday, February 24, 2017, at the Doubletree Hotel in Arlington Heights, Illinois. Topics to be covered during this year's seminar include:

  1. The transition from the Obama to the Trump administration and its effect on the U.S. immigration system;
  2. The H-1B quota for fiscal year 2018;
  3. Nuts and bolts of L, L Blanket and E visa processing;
  4. Employing international students on CPT, OPT and STEM OPT;
  5. New aggressive immigration worksite enforcement and the new Form I-9; and
  6. Crimmigration and visa revocations.

Registration is currently open and is being accepted on the Masuda Funai website. Click on this link to register.

Litigation Team Obtains Favorable Settlement for Plaintiff in Age Discrimination and Retaliation Case at Trial

David J. Stein and Frank J. Del Barto recently obtained a favorable settlement during the trial of an employment discrimination case in federal court in Chicago, Illinois. The Court appointed David and Frank on a pro bono basis to advocate on behalf of a former employee of the Illinois Department of Corrections ("IDOC") who alleged age discrimination and retaliation against her supervisors for scheming to terminate her employment and replace her with younger employees, as well as retaliating against her after she complained about discrimination.

After successfully opposing IDOC's summary judgment motion, David and Frank diligently prepared all Pre-Trial materials and began the trial of their client's case, conducting opening statements and examining several witnesses. Before sending the case to the jury to deliberate, IDOC offered, and the Plaintiff accepted, a monetary settlement on very favorable terms, evidencing the risk of a potentially adverse verdict against the Defendant.

Masuda Funai's employment litigation team routinely defends all types of employment-based disputes on behalf of our clients, including claims of discrimination, harassment, retaliation, the enforcement of non-compete and arbitration agreements, and traditional labor relations matters.

Have You Updated Your Anti-Harassment Policy and Training Programs?

By Alan M. Kaplan

In thinking about human resource goals for 2017, reviewing and updating the anti-harassment policy and training program should be at the top of any company's list. This is because a correctly written policy and training program will help lower the risk of harassment complaints and suits. First, by conducting an annual audit of the anti-harassment policy and running an anti-harassment training program, a company can take preliminary steps to ensure a workplace free of harassment. Second, even if harassment, or allegations of the same, were to occur, the company would have in place a concrete plan for investigating complaints, taking appropriate disciplinary action, and for complying with the applicable anti-harassment laws. Finally, if an employee were to bring a charge of harassment against the company, having an updated and well-written anti-harassment policy and training program in place can help with the company's defense.

What are the elements of a well-written anti-harassment policy? The policy should:

  • Comply with the requirements of federal, state and local laws.
  • Apply to employees and non-employees as well as during working and non-working hours.
  • Prohibit harassment based on sex, race, national origin, religion, and all other classifications protected by applicable federal, state, and local laws.
  • List the three-pronged definition of harassment.
  • Describe the different forms harassment could take, including verbal, non-verbal, physical, visual, and electronic harassment.
  • List the circumstances during which harassment may occur.
  • Encourage the filing of complaints either orally or in writing.
  • Promise an investigation.
  • Ensure confidentiality to the extent possible.
  • State that the Company will implement appropriate disciplinary and other actions to resolve complaints and prevent future incidents.
  • State that there will be no retaliation against any employee for making a complaint in good faith.

What are the elements of a good anti-harassment training program? Companies should:

  • Comply with the requirements of federal, state and local laws.
  • Require employees to sign an attendance sheet or issue certificates of attendance to demonstrate attendance at the training program.
  • Retain the program and proofs of attendance to submit to the EEOC, state, or local fair employment agencies and courts as part of the company's defense.
  • Train all employees, including the president of the company.
  • Make sure employees are aware that the core values taught during the training program are considered to be very important by management. For example, a company's president or other official could start off the training program with a statement that the training program reflects important company's values, which include creating a workplace free of harassment and discrimination.
  • Present an interactive program with role playing, quizzes, questions and answers, and/or a discussion of videos with examples or written scenarios drafted based upon issues at the company.
  • Include scenarios and examples of harassment based upon sex, as well as other protected classifications, that are applicable to the employees working in the company.
  • Explain the types of harassing behaviors and the circumstances in which harassment may occur.
  • Describe the steps the company will implement to investigate and resolve complaints of harassment.
  • Make sure that the training includes specific mention of the company's anti-harassment policy, and the policy should be distributed at the beginning of the training program.
  • Require employees to sign an acknowledgement of their receipt of the anti-harassment policy at the end of the training program. These should be kept in each employee's personnel file.
  • Present the training program at least once a year laws.

This past year, the Equal Employment Opportunity Commission reviewed and approved our Firm's anti-harassment policy and training program. Our Firm has developed a simple, four-step rule of behavior that employees and supervisors can use to avoid and/or monitor harassment. In addition, our Firm has developed two separate programs, one for employees and one for supervisors who have special responsibilities to report harassing behaviors and complaints and to participate in the investigation and resolution of complaints. If you require any assistance with your anti-harassment policy and/or training program, feel free to contact us. 

Cook County's New Earned Sick Leave Ordinance To Take Effect This Summer

By Masanari Katsumi

Following in the footsteps of many other local jurisdictions, Cook County, Illinois passed an ordinance that requires employers in Cook County allow certain eligible employees to accrue up to at least forty hours of earned sick leave in each 12-month period of employment (the "Ordinance"). If an employer does not allow an employee to accrue earned sick leave, or otherwise violates any other earned sick leave provisions in the Ordinance, the employee may recover in a civil action three times the full amount of any sick leave denied or lost due to any violation, interest on that amount, and reasonable costs and attorney's fees allowed by the court.

An employer must comply with the Ordinance if it gainfully employs at least one Covered Employee with a place of business within Cook County. A Covered Employee is any employee who, in any particular 2-week period, performs at least 2 hours of work for an employer while being physically present within the geographic boundaries of Cook County. In order to be eligible for accrual of earned sick leave, however, Covered Employees must work at least 80 hours for an Employer within any 120-day period.

Covered Employees meeting this requirement can accrue 1 hour of earned sick leave for every 40 hours worked after the date such earned sick leave begins to accrue, which is the first calendar day after a Covered Employee starts his or her employment or the Ordinance's effective date, whichever is later. There is a cap of 40 hours earned sick leave that can be accrued in a 12-month period, but up to 20 hours of unused earned sick leave from the preceding 12-month period can be carried over. If an employer is subject to the Family and Medical Leave Act ("FMLA"), a Covered Employee can potentially carry over more hours to the following period to use exclusively for FMLA eligible purposes. Employers are also prohibited from retaliating against Covered Employees, or requiring them to find a replacement in order to take Earned Sick Leave.

Luckily, while the requirements of the Ordinance are meant to apply to all employers employing at least one Covered Employee in Cook County, some employers may be exempt from having to comply with the Ordinance. For one, the Ordinance contains a provision allowing waiver of any Ordinance requirement in a bona fide collective bargaining agreement, provided that the waiver is set forth explicitly in such agreement in clear and ambiguous terms. For another, some municipalities may "opt out" of the Ordinance, which would mean that employers in those municipalities may not be subject to the Ordinance's requirements.

The Ordinance becomes effective on July 1, 2017. In light of the fact that the Ordinance allows Covered Employees to bring civil actions against employers for any violation of the Ordinance's earned sick leave provisions, which, in turn, has the potential to lead to steep costs for employers, employers in Cook County would do well to start thinking about the Ordinance, whether or not they need to comply with the ordinances, and, if so, how they plan to comply with the Ordinance. 

Seventh Circuit Upholds Jury Verdict Against Employer for Violation of the FMLA

By Nancy E. Sasamoto

In a "wink" of an eye, Tracy Wink's employer violated the Family and Medical Leave Act ("FMLA") when it terminated Wink because she needed leave to care for her autistic son. On January 9, 2017, the United States Court of Appeals for the Seventh Circuit not only upheld the jury's verdict against her employer, Miller Compressing Company ("Miller"), it also reversed the decision of the trial court to reduce Wink's attorneys' fees by 20 percent.

Wink had worked for Miller since 1999 and was considered an experienced and highly valuable employee. In February 2012, Wink's son was expelled from day care because of his aggressive behavior, which was a product of his autism. Consequently, Wink asked Miller for FMLA leave, which would enable her to work from home 2 days a week. Miller agreed to an arrangement where Wink could work from home for 2 days a week, provided that Wink report the number of hours she actually worked while at home. The time Wink spent taking care of her son would be considered FMLA leave.

In the summer of 2012, Miller experienced serious financial problems and decided that none of its employees would be allowed to work at home and that all employees would be required to work on the company premises. On a Friday in July, Miller gave Wink an ultimatum: she had to show up on Monday and work the same full-time schedule as all other employees. She started to cry and said that it would be nearly impossible for her to find day care over the weekend for Monday. In response, Miller's human resources officer falsely told Wink that the FMLA only covered leave from work for doctors' appointments and therapy. In fact, under the FMLA, eligible employees are entitled to take up to 12 weeks of leave during a 12-month period for qualifying reasons, which include caring for a child with a serious health condition.

On Monday morning, when Wink returned to work and reported that she had been unable to find day care for her son over the weekend, Miller's human resources officer told Wink that she would be considered a "voluntary quit" the first day she didn't work in the office full-time. When Wink returned home to take care of her child, the human resources officer ordered that her termination be processed "today." 

Wink sued for retaliation in violation of the FMLA, interference with her rights under the FMLA, violation of a Wisconsin Wage Statute, and breach of contract. The jury found in favor of Wink on all claims, except for the interference claim. In addition to various damages, Wink was awarded attorneys' fees, since the FMLA entitles a winning plainitff to attorneys' fees, but the trial judge reduced the fee award by 20 percent because Wink had not prevailed on the FMLA interference claim. Miller appealed, stating that no reasonable jury could have found enough evidence to justify the verdict, and Wink cross-appealed, seeking a higher award of attorneys' fees.

On appeal, the Seventh Circuit Court of Appeals upheld the jury's verdict that Miller retaliated against Wink for asserting her right to take FMLA leave to take care of her autistic child. Because the company had previously allowed her to work at home for 2 days a week since February and because Wink was a valuable, experienced employee, the Court found that Miller had no compelling reason to fire her other than to express anger that she requested to be allowed to stay home. The Court found that the false explanation of FMLA rights by Miller's human resource supported Wink's case against Miller and showed that Miller had not acted in "good faith," which entitled Wink to liquidated damages plus interest. With regards to the attorneys' fees, the Seventh Circuit reversed the decision of the trial court to reduce Wink's attorneys' fees by 20 percent because (1) Wink's attorneys were prudent in pressing both the FMLA retaliation and interference claims to reduce the likelihood of a total defeat; and (2) because FMLA retaliation and interference claims are so similar that the cost of presenting the interference claim in addition to the retaliation claim was marginal.

Clearly, employers cannot justify denying eligible employees the right to use FMLA because of the company's financial problems or by announcing a company-wide edict that all employees must work at the company on a full-time basis or be terminated. While employees are not necessarily entitled to take FMLA leave every time they don't have a babysitter or other child care provider, employees have the right to take FMLA leave to care for a very difficult, sick child. Additionally, in this case, the human resources officer's rash acts and false explanation of the FMLA resulted in a significant liability for the company.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions