Author: msaawe

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 Office of Michael T. Smith 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 Office of Michael T. Smith 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 Office of Michael T. Smith 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 Office of Michael T. Smith 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 Office of Michael T. Smith 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 Office of Michael T. Smith today for a consultation.

The United States Federal Law has set specific guidelines for employers to follow when considering the termination of an employee’s contract. These set of rules address the freedom of the employer concerning violations of employment contracts. These address the agreement that the employer and employee had before or after resuming employment.

Discriminatory acts in the workplace may overlap with this area, but they come under a separate legal topic which is called Title VII. Discriminatory Law is based largely on the Civil Rights Act of 1964 and has become a growing branch of the Federal Law Code of the United States.

Employees that do not have a certain contract with their employers can challenge wrongful termination on the basis of the employee handbook. The handbook can serve as an agreement between the two parties.

What Is Considered To Be Wrongful Termination?

Employment Termination based on any of the following can be considered illegal and challengeable:

• Discrimination: An employer cannot terminate an employee based on their nationality, race, age, sex, religion, and (in certain jurisdictions) sexual orientation.

• Employee’s refusal to be involved in an illegal act: If the employer is asking the employee to commit an illegal act on behalf of the company, then the employer reserves no right to terminate the employment.

• Retaliation: If an employee has filed a discrimination complaint or has been part of an investigation pertaining to a discrimination case, they cannot fire the employee in retaliation.

• Termination procedure not being followed: If the employer is considering termination of an employee’s contract, the process must be according to the employee handbook. If the process is not followed, the employee reserves the right to file a wrongful termination claim.

Employment at Will

To pursue a wrongful termination claim, it is important for the employee must know the ins and outs of their employee handbook very well. In most wrongful termination cases, the employment at will doctrine can also play a major part. The employment at will doctrine is adopted by most states and claims that the employees are not bound by anything more than their will to work. Both the employer and the employee reserve the right to terminate the contract at any time.

This may be true to some extent, but in the case that the employer has signed a specific contract with the employee stating the terms of discharge, the doctrine does not apply.

Pursuing a Wrongful Termination Claim

For a person that claims that they were wrongfully terminated, having a good knowledge of the statutes of limitation is necessary for a successful claim. These limitations are the rules that dictate how much time may elapse between the discharge and the filing of the lawsuit. So, it is not advised to wait too long before you file the claim for wrongful termination against your employer. There also has to be a claim filed with the Equal Employment Opportunity Commission (EEOC) before the lawsuit can be filed.

The process is a bit difficult to understand for people who do not have detailed knowledge of the American Legal system, but there are reliable attorneys that can help you out with the process and the lawsuit.

Talk to an experienced Roselle wrongful termination attorney to discuss your case. Contact the Law Office of Michael T. Smith today for a consultation.

Employment discrimination takes many forms. Indeed, when it comes to race discrimination, you do not have to belong to a minority racial group in order to be a victim. Any discrimination in hiring or firing based on a person’s race is illegal under federal law.

White Worker Claims He Was Fired to Meet Racial Quota

For example, a federal appeals court in Chicago recently held a Caucasian (white) construction worker could proceed with an employment discrimination lawsuit. The employer was a joint venture of three construction companies hired to build a bridge over the Mississippi River to connect St. Clair County, Illinois, and St. Louis, Missouri. The job itself was subject to a collective bargaining agreement between the joint venture and two local labor unions. The Missouri Department of Transportation, which commissioned the bridge, also imposed certain federal hiring goals for female and minority racial hiring.

The plaintiff in this case was a union member working on the bridge project. About two months into the job, the plaintiff was laid off. The plaintiff alleged his superintendent told him that “my minority numbers aren’t right.” Another employee later said in a sworn affidavit that the same superintendent told him more explicitly that he had to fire the plaintiff “because there was an insufficient number of non-white workers at the Worksite.”

The superintendent denied there was any racial discrimination. He said the plaintiff was laid off because, at the time, there was no work for him. However, he acknowledged that for several weeks leading up to the layoff, the job site “had been out of compliance with its minority participation goal,” and accordingly he did hire a minority employee to fill a job the plaintiff was qualified for.

The plaintiff sued the employer in federal court alleging illegal employment discrimination. The trial judge dismissed the case, finding there was a lack of “direct evidence”–in other words, a “smoking gun”–proving there was racial discrimination. The plaintiff appealed.

The Seventh U.S. Circuit Court of Appeals, which oversees all employment discrimination cases from Illinois, agreed with the plaintiff that the trial judge prematurely dismissed his lawsuit. The appeals court said it was “puzzled” that the trial judge did not consider the superintendent’s alleged statement to the plaintiff as “direct evidence” of racial discrimination. The trial judge apparently made a distinction between the superintendent’s “decision not to rehire [the plaintiff] rather than his decision to terminate [the plaintiff].” But the Seventh Circuit noted the statement was allegedly made in the context of the superintendent explaining his decision to terminate the plaintiff’s employment. In other words, the discrimination when the plaintiff was laid off, regardless of whether there was further discrimination when he was not rehired.

Contact an Employment Discrimination Lawyer Today

Employment discrimination is not always easy to prove. There may not be a direct statement from a supervisor confirming discriminatory intent. But as the Seventh Circuit explained in the case above, even a collection of “scraps of circumstantial evidence” may allow a jury to conclude a person was fired (or not hired) for illegal discriminatory reasons. That is why if you suspect you have been the victim of an illegal job action, you should speak with an experienced Roselle employment discrimination attorney. Contact the Law Office of Michael T. Smith if you need to speak with an attorney about your case today.

Retaliation refers to the wrongful termination or punishment faced by an employee for reporting any illegal activity or unethical conduct of the employer or company, such as workplace safety violations, harassment, discrimination, and others. There are several laws that give workplace rights to employees and prohibit retaliation. They provide protection to employees from being fired or confront negative actions when they report against their employer. According to many federal and state laws, any form of retaliation is illegal, making employees eligible for compensation.

The Types of Evidence Required for Proving Retaliatory Discharge

When you file a retaliatory discharge lawsuit, you need to produce evidence showing link between the protected activity and the retaliatory conduct. The two types of evidence that can establish this connection are: direct evidence and circumstantial evidence.

Direct evidence includes any written or verbal statement indicating that your employer terminated you because of the participation in a protected activity or your complaints. Some examples of direct evidence are emails, conversations, and letters. Circumstantial evidence refers to events that happened during the time of termination and your participation in protected activity. It may include actions of your employer after or prior to firing you, such as demotion, making work difficult, and others. Such actions are indirect evidence showing that the employer retaliated.

The Elements of a Retaliatory Discharge Case

In order to prove that you were victim of retaliation to a court or the Equal Employment Opportunity Commission (EEOC), you need to show that:

• You were terminated, fired, or punished in a certain way by the employer.

• You rightfully opposed to the unlawful acts of your employer or participated in protected activities.

• There is a direct or indirect relationship between the protected activity and your laying off from the employment.

It is imperative to establish that you were terminated because of your participation in protected activity instead of any other reason. In some cases, the employers casually admit to their retaliatory conduct and makes things easier for you, as it is a strong evidence to prove your case. However, if they don’t make such confessions, you may have to use indirect evidence to prove retaliation. For example, timing is an important indicator that can help you establish a link between the events. Moreover, if you are fired for poor performance while your performance reviews show otherwise, you can use this to prove of your retaliation case.

What Damages can you recover from a Retaliatory Discharge Case?

If you file a claim against the employer with the help of your attorney wrongful termination attorney, you may recover damages such as:

• Punitive damages

• Back pay

• Attorney’s fees

• Emotional distress and mental anguish

• Future wages

Talk to an experienced Roselle wrongful termination attorney to discuss your case and get the rightful compensation for your losses. Contact the Law Office of Michael T. Smith today for a consultation.

As an employee of any firm or organization that operates in the United States of America, there are certain employee rights that everyone should be aware of. The rights of employees as declared by law are something that every registered company in the United States needs to adhere to and an inability to do so means that the employee can challenge the company in court.

In the United States, the Employment Discrimination Law derives from common law. Employment discrimination in the private and public sector is directly addressed and implemented by the constitution of the United States of America, but has now become one of the rapidly growing bodies of the United States Federal Law.

Federal Law Prohibition

The Civil Right Acts of 1964 is the main basis that forms the Employment Discrimination Law and is evidence that people fighting for their rights get justice if they approach the problem with determination. The Discrimination Law addresses areas of:

• Hiring

• Recruiting

• Promotion policies

• Job evaluations

• Compensation

• Training

• Disciplinary action

Under Federal law, there are specific subjects, on which the employer cannot base the hiring or termination of any employee at any time. These include:

• Sex

• Race

• Religion

• Pregnancy

• Disability

• Geographical origin or Nationality

• Age (employees over 40)

• Disability

• Debts status or Bankruptcy

• Military service

• Status of Citizenship

• Genetic Information

Discrimination and Harassment

It is important to take note that discriminatory acts can occur in the work place from any direction. Be it a superior not being fair to a person of a certain race, sex or age, or a co-worker who has been making jokes evidently or subtly. Any form of verbal slander towards a person due to their difference in appearance, age or disability can be counted as legally actionable.

It is also illegal for an employee to assume that a certain employee is unfit or incapable based on their disability.

How to Proceed

According to the United States Federal Law, companies or employers that have in any way discriminated employees which includes both, unfair treatment or evident discrimination, can be legally pursued by the employee. It is also illegal for the employer to retaliate against the employee who has filed the complaint.

There are certain laws that pertain to discrimination in the workplace, and certain situations may not fit the criteria. However, if they are related to any of the mentioned above aspects, legal action can be taken. If an employee feels that they are experiencing discrimination in the workplace, they can file a complaint with the EEOC (Equal Employment Opportunity Commission).

For employees facing any difficulty in the complaint filing process, they can acquire the help of reliable attorneys that have been working in this field. They can guide the employees through the filing process and can represent them accordingly in court.

Talk to an experienced Roselle wrongful termination attorney to discuss your case. Contact the Law Office of Michael T. Smith today for a consultation.