Author: msaawe

Retaliation is a form of discrimination that refers to a negative action by an employer against an employee for filing a complaint about an illegal conduct. This may include discrimination, failure to pay overtime, harassment, workplace safety violations, and others. A variety of state and federal statutes, along with Illinois common law, keeps an employee safe from retaliatory discharge when they engage in a certain conduct or deny being a part of any unlawful conduct.

State and Federal Laws for Retaliatory Discharge

The employment laws that protect workers from retaliation include:

• The Equal Pay Act

• The Fair Labor Standards Act

• The Age Discrimination in Employment Act

• The Family and Medical Leave Act

• Title VII of the Civil Rights Act

• The Americans with Disabilities Act

• The Occupational Safety and Health Act

These laws are applicable in the following situations:

1. Workplace Discrimination and Harassment

An employer may not fire a worker for exercising their rights under the above laws, or for participating in an authorized investigation for any issues in the workplace, or for making a complaint about discrimination or harassment to the Equal Employment Opportunity Commission or their own HR department.

2. Taking Leaves

An employer may not fire a worker for exercising their right to apply and take workers’ compensation leaves, take paid sick leaves, take time off to serve on a jury, take leave under the Family and Medical Leave Act, or take any other protected time off from work in a legal manner.

3. Filing a Workers’ Compensation Claim

An employer may not penalize or fire a worker for filing a claim to get workers’ compensation benefits for a workplace injury.

4. Health and Safety Violations

An employer may not fire a worker for making a complaint for violations pertaining to workplace health and safety standards to the Occupational Safety and Health Administration, or to a concerned department within the company.

5. Wage and Working Hours

An employer may not fire a worker for making a complaint about failure to pay the minimum wage or overtime, illegally keep the rightful portion of commission, or deny legally required breaks to the Department of Labor or to a concerned department within the company.

Compensation for Retaliatory Discharge Claims

If you are successfully about to establish your claim for retaliation, you will be able to recover several damages, including:

• Back pay, such as wages and benefits for the period you were fired

• Out of pocket losses, such as the cost of searching for work

• Court costs and attorney’s fees

• Reinstatement or front pay

• Compensation for pain and suffering

It is essential for every employee to know about their rights and how they can protect themselves from adverse and unfair actions of employers. If you have faced retaliation, you should file a case against your employer and get back what’s rightfully yours. Talk to an experienced Roselle retaliatory discharge attorney to discuss your case and evaluate your legal options. Contact the Law Offices of Joshua D. McCann, LTD today for a consultation.

It’s hard to believe, but in 2016 there is no law at the federal level explicitly protecting gay, lesbian, bisexual or transgender people from workplace discrimination. However, there is some indication that this may be beginning to change at the federal level, complementing an Illinois law that has protected employment rights of the LGBT community for the past decade.

New EEOC Cases Highlight LGBT Rights

With no federal protections in place for LGBT employees, the EEOC has been working with the laws already on the books to bring employment discrimination actions against employers who discriminate based on sexual orientation. In March 2016, the EEOC brought its first two actions under Title VII of the Civil Rights Act, alleging sexual discrimination based on sexual orientation.

While Title VII was implemented to protect employees from discrimination based on their sex, the EEOC’s new interpretation of the law is that it is a violation of Title VII’s protections to discriminate based on sexual orientation because it does not conform with an employer’s expectations of how members of a certain gender should act. In the two new EEOC cases, one brought by a gay man in Pennsylvania, and the other brought be a lesbian woman in Maryland, the plaintiffs allege they were forced from their jobs after numerous anti-gay comments were made by supervisors. Whether or not this theory put forth by the EEOC holds up as a proper use of Title VII will need to be determined by the courts.

LGBT Protections Under Illinois Law

While the EEOC works to determine whether sexual orientation is a protected class under Title VII, Illinois residents enjoy protection from LGBT discrimination under the Illinois Human Rights Act. This law explicitly bans employment discrimination within the state based on either sexual orientation or gender identity. The EEOC’s efforts to now enforce protections for LGBT people in the workplace may actually have an unforeseen yet positive effect on lawsuits brought under the Illinois Human Rights Act.

Under Illinois law, a state lawsuit alleging discrimination based on sexual orientation must be brought within 180 days of the adverse employment action. But the time to bring an employment discrimination action under state law also depends on the statute of limitations under federal law. With the EEOC now bringing actions alleging discrimination based on sexual orientation, this means that state claims now have 300 days to be filed, the same as under federal law. And bringing a Title VII action for sexual discrimination with the state action now also means that an employee can recover punitive damages, which can significantly increase the amount of any award recovered in the case.

Contact an Employment Discrimination Lawyer Today

No one should lose their job because of who they are. If you believe you’ve been discriminated at your job because of your sexual orientation or gender identity, then you should speak with an experienced Roselle employment discrimination attorney. Contact the Law Offices of Joshua D. McCann, LTD today for a consultation.

There has long been an idea under Illinois law that doing the right thing should be protected. If you notice your employer is doing something illegal and report it to law enforcement, you should be rewarded for this good deed, or at the very least protected from retaliation at your job. Illinois has long had what’s known as the Whistleblower Act on the books to protect employees from retaliatory discharge if they report wrongdoing on the part of their employer. But a recent decision by the Illinois Supreme Court has now made it harder to prove retaliatory discharge cases.

Joshua McCann v. Precision Alliance Group

The three plaintiffs in the 2014 case Joshua McCann v. Precision Alliance Group, LLCworked for a company that sold bags of soybeans. State law required this company to fill bags of soybeans with the weight printed on each bag, but the three men became aware that their employer was under-filling bags, and reported this information to a former employee who passed it along to the Illinois Department of Agriculture, Bureau of Weights and Measures. The involvement of the department caused soybean production at the plant to shut down for ten days.

The plaintiffs’ employer reportedly threatened to terminate anyone involved in reporting the company’s under-weighing of bags to the Illinois Department of Agriculture, Bureau of Weights and Measures. The first plaintiff was terminated shortly thereafter for improper use of a forklift, and the two other men lost their jobs due to downsizing at the plant. None of the men were explicitly fired for their whistleblowing, but of course they had their doubts and pursued a lawsuit for retaliatory discharge.

The Illinois Supreme Court Requires More Than a Causal Nexus for Retaliatory Discharge Cases

The plaintiffs lost their case at the trial level, but won before the court of appeals. However, when the case went before the Illinois Supreme Court, the original judgment in favor of the defendant employer was reinstated.

The Court’s decision instituted a federal rule in retaliatory discharge cases that had previously been rejected by Illinois courts. Under this standard, to prevail for retaliatory discharge, a plaintiff must show:

• Discharge by the employer;

• That the discharge was actually in retaliation for conduct of the employee; and

• That the discharge was in violation of public policy.

The problem with the Joshua McCann case is that while the Court found that there might have been a “causal nexus” between the discharge of the men and their whistleblowing conduct, without a smoking gun showing that their actions were the direct cause of the loss of their jobs, the Court refused to hold their former employer accountable.

Contact an Employment Discrimination Lawyer Today

No one should have to worry about losing their job for doing the right thing. If you’ve been fired because you reported an illegal activity by your employer to the authorities, you should speak with an experienced Roselle employment discrimination attorney. Contact the Law Offices of Joshua D. McCann, LTD today for a consultation.

Many employees think that they can sue a former employer for retaliatory discharge just because they were unfairly fired. Illinois law is not this clear cut, however. Just because an employer’s actions were unfair doesn’t mean they were necessarily illegal and you’re entitled to compensation.

In Illinois, retaliatory discharge is a common law tort, meaning that it is not codified in any statute. Illinois courts have repeatedly held that to prevail on a claim of retaliatory discharge, a plaintiff must prove three elements: 1. That he was discharged; 2. That the discharge was in retaliation for his activities; and 3. That the discharge violates a clear mandate of public policy.

The Many Definitions of Public Policy in Illinois Case Law

Usually the first element is not in dispute. Many employers do dispute whether a discharge was in fact in response to specific activities, but even more disputed than that is whether the discharge violated public policy.

In the 1978 case Kelsay v. Motorola, the first Illinois case to recognize retaliatory discharge, the Illinois Supreme Court ruled in favor of the plaintiff, finding that despite Illinois’ status as an at-will state, the plaintiff’s former employer had violated public policy by firing him for filing a workers’ compensation claim. This was a fairly straightforward case, as few people could make the argument that an employee should be filed on these grounds alone. In 2016, such an argument would not go very far at all in Illinois courts.

In the following years, the Illinois Supreme Court ruled in favor of former employees in cases where plaintiffs were fired for reporting suspected crimes or refusing to handle nuclear waste in violation of federal law.

However, Illinois courts have also narrowed what constitutes a violation of public policy in recent years. Following Kelsay, appellate courts have upheld discharges of employees who were dismissed for reporting that a coworker committed suicide because of work-related stress, or for complaining about non-compete clauses. In the case of non-compete clauses, the court of appeals found there was no violation of public policy because such contracts do not affect the welfare of all citizens.

And most recently in Lucas v. Cook County, the Court of Appeals for the First District in 2013 upheld the discharge of a physician who refused to treat male patients for STDs after spending her entire career only treating female patients. The doctor claimed she was simply not competent to treat male patients and was fired by the county. The court held that the doctor had not identified a clearly mandated public policy that amounted to a retaliatory discharge.

Contact an Employment Discrimination Lawyer Today

Retaliatory discharge cases can be tough to prove in Illinois because a plaintiff has to show that the discharge was against a public policy, and exactly what constitutes a valid public policy can vary widely between cases. But an experienced Roselle employment discrimination attorney can help you build your retaliatory discharge case. Contact the Law Offices of Joshua D. McCann, LTD today for a consultation.

Employees have a right to voice concerns that their coworkers are being treated unfairly, according to a recent opinion from the Seventh Circuit Court of Appeals, which includes Illinois. The case, Staffing Network Holdings, LLC v. NLRB, found that such statements cannot be subject to employee retaliation under the longstanding doctrine of protected concerted activity.

What is Protected Concerted Activity?

Protected concerted activity has been a part of the National Labor Relations Act since it was passed into law in 1935. Based on the First Amendment protection of free association, this right protects employees from retaliation if two or more employees engage in conduct with the intent of improving working conditions. It also protects conduct on the part of one employee who speaks up about the need to improve working conditions for himself, or on the behalf of other employees. Workers have a right to engage in protected concerted activity whether or not they belong to a union.

Staffing Network Holdings, LLC v. NLRB

In the Staffing Network Holdings case, an employee was sent home from work for not working faster to fulfill an order of books. Other employees who witnessed this, began to tell management that it was unfair to send this worker home for not working faster. A second employee was sent home for speaking up on behalf of the first employee. He was later told not to return to work. Other employees were also threatened that they would be told to go home if they commented on behalf of the first employee.

The second employee then filed a complaint with the National Relations Board, alleging unfair labor practices. The administrative law judge found in his favor, ordering his employer to reinstate him and pay him for lost wages. On appeal, the Seventh Circuit upheld the decision of the administrative law judge in favor of the employee.

Despite arguments from the employer that because this was a staffing agency, the employee could still work for other clients, the Seventh Circuit found that the employee had been involuntarily separated from employment and was entitled to reinstatement. But perhaps most importantly, the court found that a brief work stoppage to engage in protected concerted activity is protected under the National Labor Relations Act. This decision now gives employees in Illinois a powerful tool to work together to improve unfair or unsafe working conditions without fear of retribution from employers. And it puts employers on notice that if they do retaliate against workers for protected concerted activity, they will be held accountable in the judicial system.

Contact an Employment Discrimination Lawyer Today

If you believe your employer is treating you and other workers unfairly, you and your coworkers have a right to speak up without fear of retribution. Courts have held again and again that such concerted activity is protected. If your employer has retaliated against your for such activity, an experienced Roselle employment discrimination attorney can help. Contact the Law Offices of Joshua D. McCann, LTD to speak with an attorney about your case.

When firing an employee, some employers use severance agreements to avoid potential claims down the line, especially in wrongful termination and discrimination cases. Generally, if an employee signs the dotted line of a release of claims and accepts the severance package, they may lose the right to file any possible claims forever. Before you sign anything, it is imperative for you to understand the ins and outs of severance agreements and your rights under state and federal laws.

Age Discrimination and Severance Agreements under the OWBPA

The Older Workers Benefits Protection Act of 1990 (OWBPA) is a part of the ADEA, which protects employees over 40 years of age from several clauses of severance agreements. This may include early retirement, reductions-in-force, exit incentive plans, firings, and voluntarily resignations. The employers are required to fulfil the OWBPA’s requirements to lawfully enforce any release of claims in a severance agreement. These requirements include:

• Written Agreements: Oral agreements cannot be used to waive age discrimination claims.

• Release of Claims: This part of a severance agreement contains a release that waives claims, such as those based on the employee’s race, age, religion, disability, gender, national origin, and others. However, according to the EEOC, although a severance agreement may restrict an employee from filing a lawsuit against their employer, it cannot keep them from filing a charge of age or any other form of discrimination with the EEOC.

• Must be Understandable: The agreement must be written in such a manner that it is easily understood by the individual signing it. This means that if an employee has sub-average level of intelligence, the employer must reword the form in a way that is understandable by that employee. Furthermore, if the releases contain exaggerated or misleading components, the entire agreement can be voided.

• Revocation Period: The employer is required by law to provide a seven-day revocation period when offering a severance agreement to an employee comprising of an ADEA release of claims. This period allows the employee to revoke the agreement after they have signed it. Moreover, the revocation period is mandatory and cannot be waived by either party.

• Consult an Attorney: The OWBPA requires the employee to consult an attorney before they may sign the agreement. Even if the severance agreement has been written in an easy-to-understand manner, it still must be advised to discuss the case with an attorney. This requirement makes sure that the individual signing the agreement understands what age discrimination claims are being released and/or waived.

• Time to Review: If a single person is being terminated and they are over 40 years of age, the employer must give 21 days to consider and review the agreement. However, if a waiver is pertaining to an exit incentive or any other termination program offered to a group of employees, the time to review period should be at least 45 days long.

If your employer has wrongfully terminated you based on age-related factors and offered a severance package with a release of claims, you may still have legal recourse. Contact the Law Offices of Joshua D. McCann, LTD today to discuss your case with an experienced Roselle employment discrimination attorney and evaluate your legal options.

When an employer takes a negative employment action against an employee, such as denial of benefits or harassment, based on their sexual orientation, it is known as sexual orientation discrimination. It is essential for employees to know about their rights against such practices and behavior of employers, and how it can be with other types of discrimination, like disability, sex, marital status, religion, and gender identity, in order to take legal action.

This form of discrimination can severely affect your workplace environment, employment benefits, job status, and give rise to an array of other issues. Many federal, state, and local laws and regulation protect employees from sexual orientation discrimination. If you think you are being treated differently or unfairly because of your sexual orientation, you should discuss your case with an experienced employment discrimination attorney who will help you understand your rights and provide the best solution for your situation.

Laws Protecting Employees Against Sexual Preference/Orientation Discrimination

Federal Laws

Comprehensive statutory guidelines have been available in the Title VII of the Civil Rights Act of 1964, a federal law, that prohibit employment discrimination pertaining to age, sex, national origin, religion, race, and color. However, it does not cover discrimination based on gender identity or sexual orientation. However, the Equal Employment Opportunity Commission (EEOC) supports that sexual orientation discrimination is a form of sex discrimination, and should be treated in the same way.

While there are not any clear federal laws protecting employees from sexual orientation discrimination, employers are not free to engage in discriminatory practices. Over the past few years, many cases have been fought and ruled in favor of employees where they were discriminated for their sexual orientation. Several states have enforced laws that prohibit this kind of discrimination that every employer must be follow.

State and Local Laws

20 states, including Illinois, have state laws in place that protect employees from sexual orientation discrimination in both public and private workplaces. Aside from this, about 200 US counties and cities, some of which are in Illinois, have specific laws designed to prevent sexual discrimination at the workplace. They provide greater protection to employees and give them the right to make a claim against unfair practices of their employers.

What Damages are Available for Sexual Orientation Discrimination?

In Illinois, employers must follow the laws and regulations that bar them from engaging in any kind of discrimination, including those based on sexual orientation. Failing to do so grants employees the right to file a claim against their employer, who may be liable to pay for damages, such as:

• Back pay and benefits

• Fees and costs of attorney and court proceedings

• Emotional distress

• Out-of-pocket expenses

• Punitive damages

Proving discrimination based on sexual orientation can be difficult, as complex local and state laws govern this category. It is best that you work with an experienced and knowledgeable employment discrimination attorney who will help you understand the law, and work with you get the justice and compensation that you deserve. Contact the Law Offices of Joshua D. McCann, LTD today to discuss your case with a Roselle employment attorney and evaluate your legal options.

Sex discrimination remains a serious problem in many professional fields. While it may seem inconceivable that in 2016 there women are still barred from entire classes of jobs, in reality that is sadly still the case. And even when the federal government intervenes to put an end to such practices, it can take many years of litigation just to get a court to answer the question of whether illegal sex discrimination exists.

Insufficient “Conciliation” Is Not a Defense to Employment Discrimination

Here in Illinois, federal officials have spent years fighting sex discrimination at a Johnston City-based coal mining operation that has allegedly never hired a single woman to work as a miner. Indeed, investigators for the Equal Employment Opportunity Commission (EEOC) discovered the company “did not even have a women’s bathroom on its mining premises.” Based on complaints from women who said they were unable to obtain mining jobs, the EEOC determined there was evidence of widespread sex discrimination dating back to at least 2006.

But before the EEOC can actually sue an employer for sex discrimination, federal law requires an attempt at “conciliation.” Basically this is where the EEOC attempts to resolve any discrimination issues with an employer without the need for formal legal proceedings. Conciliation failed in this case, however, and the EEOC sued the mining company in Illinois federal court.

This led to extended litigation over the sufficiency of the EEOC’s conciliation efforts. Eventually the United States Supreme Court weighed in on the issue. Justice Elena Kagan, writing for a unanimous court in 2015, said the EEOC “must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” At the same time, Justice Kagan said the courts should not second-guess “how to conduct conciliation efforts and when to end them.” That was at the discretion of the agency.

In short, an employer cannot use the EEOC’s conciliation process as an excuse to avoid answering for serious charges of employment discrimination in court. To that end, the judge in the mining company case recently issued an order barring the employer from asserting such an argument as an affirmative defense. The underlying discrimination case has yet to be tried.

Do You Need to Speak With a Discrimination Lawyer?

There is nothing simple about any type of employment discrimination case. Employers will use every legal tactic at their disposal to delay resolution of a case for years if possible. Meanwhile it is the innocent employee who suffers.

That is why it is critical to never try and handle a discrimination case on your own. An experienced Roselle sex and age discrimination attorney can assist you with every step of your case, from making initial contact with the discriminatory employer to dealing with government officials and representing your interests in court. If you need help with any type of employment discrimination case, contact the Law Offices of Joshua D. McCann, LTD today.

To avoid liability for wrongful termination, most employers have to provide a legitimate reason when firing an employee. They may say that you are being fired for misconduct, to cut costs, poor performance, or because the company is reorganizing its hierarchal structure. This is known as termination or firing for cause.

Understanding Termination for Cause

When an employer fires an employee for a specific cause, it is stated in the termination letter, which is handed over to the employee. Some examples of actions that may result in termination for cause include:

• Breach of contract

• Conviction for crimes

• Extreme insubordination

• Failing a drug or alcohol test

• Failure to follow company policy

• Falsifying records

• Harassment

• Lying

• Stealing company property or money

• Threats or threatening behavior

• Violation of the ethics policy or company code of conduct

• Violence or threatened violence

• Watching pornography online

It may seem to you that the company came up with a perfectly good reason to terminate you, but what if they decided to make the call just after you have declared pregnancy? What if they hired another employee to replace you at a relatively higher package after saying that your position was being eliminated?

In such situations, there is a high chance that the underlying reason for firing you was illegitimate. If you think that your employer fired you illegally, you can make a claim for wrongful termination against the company.

What Can an Attorney Do for You?

It can be stressful and frustrating to get fired from your job. But that does not mean that you should file a lawsuit right away against your employer as your plan can backfire if you are unable to prove that your termination was wrong. To help you determine whether your case is viable, you need to work with a wrongful termination attorney who can provide you legal counsel as to how you should proceed.

Your attorney will work with you to explore the context of your specific circumstances, and carefully assess the details of your termination. For example, the reason for your termination for cause was you left early a few days? Did you leave early for a plausible reason? If so, did the employer treated you differently as opposed to any other employee?

The attorney will ask you about the reason for leaving early. Was it because you did not feel well? Or was it because you had an emergency? If your employer knew about the medical condition or emergency, you may have a wrongful termination case. Another benefit of working with an attorney is that they provide you legal insights into your rights and possible options. Based on your situation, they can devise a tailored legal strategy to increase your chances of getting a favorable outcome.

If you think you were fired for cause and the reason was illegitimate, it is best that you first discuss your case with an experienced Roselle wrongful termination attorney before you move on to bring a wrongful termination action on your employer. Contact the Law Offices of Joshua D. McCann, LTD today for a consultation

The Equal Employment Opportunity Commission (EEOC) has enforced several laws that protect employees from discrimination based on everything from religion and physical ability to age and sex. While there are federal laws in place against workplace discrimination, most states have also passed some laws that take additional measures against it. Some of the state laws are more favorable in certain

The following are the two most common types of discrimination that employees experience in the workplace:

Sex Discrimination

The Civil Rights Act of 1964: Title VII clearly outlines that it is against the law to discriminate between employees based on their sex or gender. The law provides protection at all stages including recruitment, during employment, workplace terms and conditions, and termination.

Sex discrimination is of two types: indirect and direct. Indirect sex discrimination refers to assumptions by managers or employers regarding the sort of job duties men and women are or aren’t capable of doing. Direct sex discrimination refers to the unfair treatment of employees because of their gender.

Possible situations for sex discrimination include:

• Dividing tasks based on gender.

• Offering men and women different pay rates or employee benefits for the same position.

• Not considering men or women for specific roles.

• Not hiring a male or female because the employer thinks they won’t fit into the workplace culture.

• Not promoting a male or female employee to a senior position on the assumption that other staff won’t respect their authority.

Age Discrimination

The Age Discrimination in Employment Act of 1967 (ADEA) outlines laws and regulations that protects employees against discrimination based on their age. The ADEA applies to organizations that have 20 or more employees, including local and state governments. It also applies to labor organizations and employment agencies, as well as the federal government. Just like sex discrimination, the laws safeguard employees at all stages of employment.

Possible situations for age discrimination include:

• Not hiring young employees on the assumption that they may switch to another job too quickly.

• Not hiring mature workers on the assumption that their retirement is close.

• Posting job advertisements specifying the requirements of “young and energetic” workers.

• Not providing equal training opportunities to employees based on their age.

• Not interviewing someone because they are too old or too young to fit in the organization’s culture and with other staff.

• Forcing someone to retire, or making choice around redundancy because of their age.

• Preferring young individuals over mature employees on the assumption that they will be more productive and work longer hours for a smaller paycheck.

• Preferring mature individuals over young employees on the basis of experience and competency.

Aside from these two forms of workplace discrimination, there are several others including color, religion, race, retaliation, pregnancy, national origin, and pay/compensation. If you think that you are a victim of workplace discrimination and your employer is not treating you fairly, you should consult your situation with an experienced Roselle wrongful termination attorney. Contact the Law Offices of Joshua D. McCann, LTD today for a consultation.