Posted: June 21st, 2011 | Author: jliace | Filed under: Employee Sexual Discrimination, Employment Discrimination | Tags: Class Action, Employment discrimination
This morning the Supreme Court rejected a sex discrimination class action of 1.5 million women against Wal-Mart. The opinion, widely anticipated, held that there was not enough “glue” to make the individual claims into a class action. Although the ruling is unfavorable to workers, the Court cited one of its cases where an employment discrimination class action consisted of 334 persons. Implicit in today’s opinion is that a class that size could still proceed after today’s ruling. How much larger an employment discrimination class can be after today’s ruling is unclear.
Quoting a lower court judge, the Supreme Court stated that class members “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.”
The case is Wal-Mart Stores, Inc. v. Dukes.
Posted: June 17th, 2011 | Author: jliace | Filed under: First Amendment, Retaliatory Discharge | Tags: Employee denied Promotion, First Amendment Rights
The employee claimed that he was retaliated against because he engaged in protected speech by: (1) publicly criticizing a city board’s recommendation to purchase a Caterpillar front-end loader; (2) asserting that the decision was improperly influenced by personal relationships with the Caterpillar salesman and (3) criticizing an invitation for a free overnight trip to Chicago followed by a tour of the Caterpillar plant. He made these statements to the Board and in a private conversation with a person knowledgeable about heavy duty equipment. The employee claimed that as a result of these protected activities he was denied a promotion.
The Court held that his statements to the board were not protected speech because they were made in his official capacity at board meetings, citing the Supreme Court case of Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). The employee also asserted that he made statements to members of the community that less expensive equipment made by John Deere should have been purchased. The Court rejected this argument because it stated that there was no evidence that the Board knew of these communications.
Significance of the Decision
The Court seems to suggest that if a decision-maker knows about communications not made directly to the employer that those expressions are protected by the First Amendment. Clearly, though, the Court wanted to make the point that retaliation cannot occur if the employer doesn’t know about the communication.
The case is Wackett v. City of Beaver Dam, Wisconsin, No. 09-4040 (7th Cir. June 14, 2011).
Posted: June 14th, 2011 | Author: jliace | Filed under: Injured Workers, Medical Treatment, Workers Compensation Claim | Tags: Expenses and Reimbursements, Travel Expenses
The Illinois Workers’ Compensation Act does not explicitly state that an injured employee in Illinois is entitled to travel expenses for travel to and from his/her medical treatment. However, the courts have held that under certain circumstances travel expenses are reimbursable.
If a claimant can show that travel to a distant doctor is necessary because the type
of medical treatment is not available in the local area, the claimant might be
entitled to reimbursement of her travel expenses. However, if the treatment sought is available in the local area but not at a doctor that the claimant wishes to treatment with the travel expenses would not be reimbursable.
For example, in the recent case of Schmidt v. Salem Bowl, the Illinois Workers’ Compensation Commission found that the claimant would be entitled to reimbursement for treatment with her spinal surgeon who was 40 miles away from her home because there was no evidence of a spinal surgeon closer to her. However, the Commission found that she was not entitled to reimbursement for her MRI travel expenses at the same location because there were MRI facilities closer to her local area. The bill for the MRI itself was still recoverable but not the travel expenses.
An attorney can help you determine whether the travel expenses may be something that is reimbursable in your claim. These decisions are very fact and case specific.
Posted: June 10th, 2011 | Author: jliace | Filed under: Employment Discrimination | Tags: Racial Discrimination, Racial Harassment
On June 9, 2011, the Seventh Circuit Court of Appeals, a Court whose decisions are binding on the federal district courts in Illinois, affirmed a district court decision in the employer’s favor. Nurses, working for a private jail, alleged that the jail created a hostile environment based on race discrimination. They also alleged that they were constructively discharged based on the severity of the racial harassment.
Although the Court accepted that the nurses subjectively believed that they had been harassed, it held that a reasonable person would not have concluded that the occurrences constituted a hostile environment. The alleged harassment included reassigning African-American nurses to another shift, co-workers wearing T-shirts with the confederate flag on them, referring to a patient’s name as “black ass coal”and a remark about monkeys on the jail’s intercom as well as a book on the desk of the Administrator making references to monkeys in the workplace.
The Court stated that these allegations were too infrequent and not sufficient to create a hostile environment. In particular, the Court went into a detailed analysis why the book’s references were not descriptions of African-Americans. Finally, the Court rejected the nurse’s constructive discharge claims because they could not establish a hostile environment and the burden of establishing a constructive discharge is heavier for claimants to meet.
Significance of Decision:
Courts in Illinois are reminded that relatively minor acts of unlawful discrimination will not create a hostile environment. Also, employees are cautioned that if they resign from a position, courts are generally unwilling to find that the unlawful harassment is so severe that a reasonable employee would feel compelled to resign. As a practical matter, when an employee alleges constructive discharge she must prove the underlying unlawful discrimination and constructive discharge.
The case is Ellis v. CCA of Tennessee, 10-2768 (7th Cir. June 9, 2011).
Posted: June 9th, 2011 | Author: jliace | Filed under: Workers Compensation Claim | Tags: Pre-existing Conditions
The Illinois Worker’s Compensation Commission has recently reaffirmed it’s position that pre-existing condition can be compensable under the Illinois Worker’s Compensation Act if the injured worker can prove that the condition was accelerated, aggravated or exacerbated by the injury at work.
This means that even though you may have a prior injury to a specific body part if you re-injure that body part due to activities at work that requires additional treatment it may be compensable under the Act. Furthermore, if you have a degenerative condition such as arthritis but it is not symptomatic, i.e. not painful, and now it is symptomatic due to the injury at work, the medical treatment required to treat that condition and relieve the symptoms could be covered under the Act.
For example, in the recent claim of Bushue v. Lutheran Care Center, the claimant fell and developed pain and symptoms in her left knee. She had never undergone treatment for her left knee in the past. However, the MRI showed there were degenerative changes. The Commission held that as her knee was not painful previously and had been continuously painful since the accident, she had a compensable claim and had suffered an aggravation of a previously asymptomatic knee condition.
If you believe that this may apply to you, contact an Illinois workers compensation attorney to discuss your options. An employer may try to deny your claim based on the pre-existing condition. It is important that you know your rights and know what you need to prove your claim.
Posted: June 9th, 2011 | Author: The Illinois Injured Worker | Filed under: Uncategorized | Tags: Illinois Code of Civil Procedure, statements made to union representative, union representative privilege with union member
Did you know that as a union member, your conversations with union agents are privileged? Generally union members understand that a privilege exists with attorneys, medical providers, clergy and a spouse, but Illinois law provides for a limited privilege to union members when discussing issues with a union representative when he/she is acting in the scope of representation of the member. The specific Statutory Provision in Illinois is 735 ILCS 5 Code of Civil Procedure. Section 8-803.5. This privilege is so important that we reproduce it here for you to see the extent of your protection.
(735 ILCS 5/8-803.5)
Union agent and union member.
(a) Except when required in subsection (b) of this Section, a union agent, during the agency or representative relationship or after termination of the agency or representative relationship with the bargaining unit member, shall not be compelled to disclose, in any court or to any administrative board or agency arbitration or proceeding, whether civil or criminal, any information he or she may have acquired in attending to his or her professional duties or while acting in his or her representative capacity.
(b) A union agent may use or reveal information obtained during the course of fulfilling his or her professional representative duties:
(1) to the extent it appears necessary to prevent the
commission of a crime that is likely to result in a clear, imminent risk of serious physical injury or death of another person;
(2) in actions, civil or criminal, against the union
agent in his or her personal or official representative capacity, or against the local union or subordinate body thereof or international union or affiliated or subordinate body thereof or any agent thereof in their personal or official representative capacities;
(3) when required by court order; or
(4) when, after full disclosure has been provided,
the written or oral consent of the bargaining unit member has been obtained or, if the bargaining unit member is deceased or has been adjudged incompetent by a court of competent jurisdiction, the written or oral consent of the bargaining unit member’s estate.
(c) In the event of a conflict between the application of this Section and any federal or State labor law to a specific situation, the provisions of the federal or State labor law shall control.
(Source: P.A. 94-22, eff. 1-1-06.)
If you have any questions about your rights under the law in Illinios, please consider contacting us. If you are a union representative with questions regarding the privilege, please contact us. We are here to help. We have been serving the working people of Illinois since 1954 and we are proud of it!
Posted: June 1st, 2011 | Author: The Illinois Injured Worker | Filed under: Uncategorized | Tags: Illinois workers' compensation reform, Injured workers, workers' compensation
Late last night, the Illinois House brought the Workers’ Compensation reform bill back up for a vote. This time, the votes were there to pass the legislation. Since this bill had previously passed the Senate vote, the bill goes to the Governor’s desk for his signature. Governor Quinn has indicated that he will sign this bill into law and the majority of its provisions will be effective July 1, 2011. For working men and women injured on the job and the medical providers who help them get well, the bill is a bitter pill to swallow. No rights were gained and many were lost. The following synopsis of the changes embodied by HB 1698 is intended as a guide. For particular questions, call our office. Please note this summary is very abreviated and is intended to inform the injured worker of changes relevant to her/his circumstances.
The definition of accident/injury is codified. The employee bears the burden of proving the accidental injury arises out of and in the course of employment. Of course, this was always the case and I am not sure what impact this provision will have on claims before the Commission.
An employer may provide its workers with a preferred provider network of medical professionals for treatment of work related injuries. If this is done, the employee has only one other choice of a physician and subsequent chain of referral. We expect many employers to utilitze this option to control the course of medical treatment for the injured worker.
For injuries sustained on or after 9/1/11, where the injury prevents the worker from returning to his usual and customary employment, the wage differential payment is limited to age 67 or 5 years from the date the Award of the is final, whichever is later.
If the employee’s injury is carpal tunnel syndrome caused by repetitive trauma, the permanency award shall not exceed 15% loss of use to the hand, except where for cause shown by clear, convincing evidence, the Commission may award up to a maximum of 30% loss of the hand. The total loss of the hand in this instance is limited to 190 weeks of compensation.
For injuries that occur on or after September 1, 2011, the determination of permantent partial disability shall be established by using the following criteria: The American Medical Association Guides to permanent impairment, the occupation of the employee, the age of the employee, the employee’s future earning capacity, and evidence of disability corroborated in the medical records.
Payment of medical, hospital, and surgical expenses will be reduced by 30% from the current fee schedule.
The employer/insurance company may use Utilization Review of the injured worker’s medical treatment and if the denies or does not authorize the treatment recommended by the treating doctor, the employee has the burden of proof to show a variance from the standards of care used in the UR and that the variance is reasonably required to cure or relieve the effects of the injury.
Intoxication by alcohol or controlled substances creates a statutory defense with presumptions and mandates testing procedures.
All the Arbitrators are terminated effective July 1, 2011 and will be replaced by the Governor’s appointees.