Molho’s Weekly Newsletter

Reports of Arbitration's Death Are Greatly Exaggerated

February 9th, 2022

About 30% of our clients ask us to put mandatory arbitration clauses in their employment contracts. We do so willingly because arbitration is a win-win for everyone. It costs less than traditional litigation, the scope of discovery is usually more limited, disputes are resolved quicker, and there is more confidentiality through arbitration.

Drafting an enforceable arbitration provision, however, just got harder. On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 ("Act"). This is one of the first new federal employment laws in over a decade. Here is what the Act does:

Does Your Business Have to Hire a Forklift Driver that Takes Opioids and Adderall?

February 9, 2022

We will not bury the lead. Of course, not. However, your business better conduct an individualized assessment of the applicant, or it may find itself in a protracted battle in federal court under the Americans with Disabilities Act ("ADA"). In a recent case decided in Ohio, Hartmann v. Graham Packaging Co., Case No. 1:19 -cv-488 (Jan. 25, 2022, S.D. Ohio) a federal court declined to enter summary judgment on behalf of a packaging company that refused to hire a job applicant who was taking oxycodone for chronic pain. The employer did almost everything right but now it will have to win a jury trial or settle.

1. The Facts in Hartmann.

Raymond Hartmann takes prescription opioids for persistent pain from a pinched nerve. He applied for a position at Defendant Graham Packaging Company, L.P. that required him to operate a forklift. Graham asked Hartmann to provide a doctor's note confirming that his medications, which also included Adderall, would not create safety concerns. Hartmann submitted three doctor's notes over the process of several months during which his employment was being considered.

Graham chose not to hire Hartmann based on safety concerns. It did not think it was wise to allow an employee who takes opioids to drive a forklift. Hartmann sued Graham under the ADA saying that he was qualified to drive the forklift, and the real reason that he was denied employment was because Graham "regarded him" as disabled. The judge decided that the case was "too close to call," denied summary judgment, and will now allow a jury to decide the issue.

Employment Liability Arising from Technology

January 5th, 2022

Which aspect of human resources is more apt to create legal liability? The human, or the resources?

Ninety-five percent of the time it is the irrational conduct of human beings, often front-line supervisors, which create employment liability for employers. In 2022, employers would be wise to revisit how they use their technological resources before concluding that they are safe from employment liability.

1. BIPA Liability Remains the No. 1 Legal Exposure to Illinois Employers.

Aside from Illinois' challenging worker's compensation environment, its Biometric Information Privacy Act (Act) (740 ILCS 14/1 et seq. (West 2018) remains one of the most anti-competitive pieces of legislation passed by the Illinois legislature in this century.

Before the winter holiday, the First District Court of Appeals, which manages all appeals arising from the Cook County Circuit Courts analyzed the five-year statute of limitations under BIPA. Specifically, it analyzed when BIPA liability accrues. Does it accrue on an employer's first violation of BIPA or its last violation?

When is the Illinois Worker’s Compensation Statute Not an Exclusive Remedy? When the Supreme Court Says So!

January 26th, 2022

We tell our clients that the quid pro quo for paying Illinois' high worker's compensation premiums, and enduring specious claims for soft-tissue injuries, is the fact that at least these cases are not being litigated in circuit courts against personal injury lawyers. They are not litigated in these venues because employers can invoke the "exclusive remedy" provision of Illinois Worker's Compensation statute.

We were too sanguine.

The Illinois Supreme Court unanimously held on January 21, 2022, that the exclusive remedy provision contained in Illinois worker's compensation statute does not extend vertically to a general contractor even though that general contractor was contractually obligated to provide worker's compensation insurance coverage for the injured employee and even thought that general contractor did in fact pay more than $76,000 in medical expenses under its worker's compensation carrier. Munoz v. Bulley & Andrews, LLC, 2022 IL 127067.

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