G Osborne Hiring Process and Related Issues1-9-2015

Hiring Process and Related Issues Illinois Human Rights Act

Gretchen Osborne

January 9, 2015

Interviews

• Employer should develop a set of standard, objective, and open-ended questions for the interview.

• Illinois Human Rights Act prohibit Employer from making an employment action based on an arrest record that has been expunged, sealed, or impounded under the Criminal Identification Act.

• Blanket inquiries concerning arrest or conviction records have been held to discriminate against minority candidates, subjecting an employer to potential liability under Title VII.

• Interviewers should be careful not to make notations that could provide evidence of discriminatory intent because such notes would be discoverable in the event of litigation.

Interviews (continued)

• Employer should adopt written job descriptions. – Employers should state that regular and predictable

attendance is an essential duty of the position – Employers should provide list of duties is not intended

to be all inclusive – Employers should consider professional evaluation of

job description, especially if there are physical or unique requirements.

• False Promises or Unintended Contractual Commitments. – In Illinois, unwritten employment agreements are

presumed to be at will.

Eastman v. Chicago, Central & Pacific Railroad Company (CC&P) 930 F2d 1173 (1991)

• Factual Pattern – Wayne Eastman worked 18 years for the ICG Railroad. He was

moved into a management position of “trainmaster” and also acquired substantial seniority in his union.

– As a result of seniority and a merger protection agreement in effect at ICG, Eastman believed his employment at ICG was “permanent” and should he lose his position, he was guaranteed employment (at a much lower salary) within the union.

– Terry Hearst, VP at CC&P, a competitor, told Eastman that their company was having problems because they couldn’t find the right people. Terry said he was going to create a new “superintendent” position and fill it with someone with rail industry management experience.


• Factual Pattern – Hearst interviewed Eastman assuring that “CC&P was the place to

be.”

– Hearst offered Eastman the superintendent position and Eastman accepted it. Eastman began working at CC&P in March 1986. CC&P provided a company car, day-time hours, and a higher salary.

– CC&P continued to experience financial problems and, in August 1986, Eastman was terminated and his position was eliminated. CC&P went into reorganization with a bankruptcy proceeding.

– In July 1988, Eastman sued for wrongful termination against CC&P in Federal District Court and received a verdict in the amount of $41,750 in damages.


• Factual Pattern – CC&P filed a motion requesting judgment not withstanding the

verdict and the court granted the motion and vacated the prior judgment in favor of CC&P.

– Eastman appealed.

• Issue – Whether unwritten employment arrangements are presumed to

be “at-will”

• Decision – Yes


• Reasoning – In Illinois concerning a judgment notwithstanding the verdict, a

trial court can override the jury’s verdict when “all of the evidence, when viewed most favorable to the opponent (to the JNOV motion), so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

– Unwritten employment arrangements are presumed to be “at-will”

– In order to overcome presumption of “at-will,” employee must prove employer made “clear and definite” oral promises as to the terms and duration of employment.


• Reasoning – Mere assurances, expressions of good will, and statements of

good intention will not overcome presumption.

– Statements made to Eastman at most reassured he would have a job at CC&P, but not a job for life.

– Heart’s statements as to the duration of Eastman’s employment did not provide the kind of specificity typically discussed in contractual terms.

– District court’s entry of JNOV against Eastman and in favor of CC&P is affirmed.

Douglas Robinson v. BDO Seidman, LLP 367 ILL.App.3d 366; 854 N.E.2d767; (2006)

• Factual Pattern – Douglas Robinson was employed by Huron Consulting Group as a

director of financial and economic consulting.

– In August 2003, Robinson was contacted by a headhunter on behalf of the defendant, BDO Seidman, LLP.

– BDO Seidman intended to establish a division devoted to computer fraud and forensic investigation and was looking for an individual to head-up the division.

– During the interview, Robinson was told that if he accepted the position, he would a) be employed as long as it takes to successfully establish the new computer fraud and forensic investigation department; b) be employed as long as Robinson desired.


• Factual Pattern – Robinson began working for BDO Seidman, LLP on March 1, 2004.

On May 1, 2004, Robinson’s employment was terminated.

– Cook County Circuit Court held that BDO Seidman’s representations to Robinson during the interview process that he would be a) employed until the new department was successfully established and b) for as long as he desired were merely expressions of goodwill and hope that did not constitute oral contracts for employment.

– Robinson appeals


• Issue – Whether informal expressions of goodwill and hope that naturally

occur between a prospective employer and a prospective employee in an interview situation that were not sufficiently clear and definite overcome the presumption that the employment arrangement was at-will.

• Decision – No


• Reasoning – An employment agreement that does not specify a definite

duration will last for as long as is mutually satisfactory and either employer or employee may terminate the employment at-will without liability for breach of contract.

– In order to overcome the assumption that an employment is at will, the terms of the oral contract for employment for a specific duration must be clear and definite.

– Employer’s representations during interview process that he would be employed until the new department was successfully established and for as long as he desired were mere “expressions of goodwill and hope.”


• Factual Pattern – Illinois Statute of Frauds provides that “no actions shall be

brought upon any agreement that is not to be performed within one year unless in writing and signed by the party to be charged.”

– Any agreement to employ Robinson for as long as Robinson desired was barred by statute of frauds.

– Trial court properly dismissed Robinson’s promissory estoppel claim as Robinson failed to sufficiently allege that Seidman’s promises were unambiguous offers of permanent employment.

Sandra Kiddy-Brown v. Rod Blagojevich 408 F.3d 346; 2005

• Factual Pattern – Sandra Kiddy-Brown was employed by the Illinois Department of

Corrections for 19 years. Most recently, she was promoted to position of warden at the Decatur Correctional Center (DCC).

– From the time of her employment with IDOC until 2003, the state of Illinois had been led by Republican governors. In January 2003, Rod Blagojevich, a Democrat, became governor.

– Kiddy-Brown claimed that she was terminated from her job for political affiliation and criticisms of the administration.

– Count I of complaint claimed that Rod Blagojevich engaged in politically-motivated patronage dismissal in violation of the First Amendment.


• Factual Pattern – Count II asserted that Rod Blagojevich terminated Kiddy-Brown’s

employment in retaliation for her speech on matters of public concern, i.e., failure to fill employment vacancies at IDOC, unwillingness to staff facilities at appropriate levels, safety of IDOC facilities, and reorganization at IDOC.

– Count III stated that Rod Blagojevich deprived Kiddy-Brown of a property interest in continued employment.

– Court denied Rod Blagojevich’s motion for judgment on the pleadings in connection with all three counts.

– Rod Blagojevich appealed.


• Issue – Whether the warden position at IDOC is exempt from the general

prohibition on political patronage dismissals. (No)

– Whether the state may retaliate and terminate a public employee for commenting on matters of public concern that criticize the administration’s staffing and safety policies at a prison. (No)

– Whether statements by the Governor that if state workers satisfactorily perform necessary jobs would not be terminated were clear and definite enough to support a reasonable belief of a permanent employment offer. (No)


• Reasoning – First Amendment forbids government officials to discharge public

employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate measurement for the position involved.

– A public employee’s speech on a matter of public concern is protected if the employee’s interest in that expression outweighs the State’s interest in promoting the efficiency of its public services.

– A governor’s alleged oral statements that if state workers satisfactorily perform necessary jobs would not be terminated were not sufficiently clear and definite to constitute an offer of employment.


– When employers tell employees that they will “always have a job” or that they will “never have to anticipate a layoff” such statements are not sufficiently clear and definite to constitute an offer of permanent employment. They are simply “optimistic expressions about the future” and “informal expressions of goodwill and hope that naturally occur” between employer and employee.

Pre-employment and ADA

• American with Disabilities Act of 1990 (ADA) • Employer may not ask the applicant

– If applicant has a disability – Questions about general physical condition – Questions about short-term impairments that possibly

relate to a long-term condition – Questions about leave for treatment and when first

became disabled – Whether applicant requires a reasonable

accommodation to perform the job functions – Questions about worker’s compensation history

Pre-employment and ADA (Continued)

• Employer may ask – About an applicant’s ability to perform essential

job functions with or without reasonable accommodation

– The applicant if he or she can perform a specific job function and how he or she would perform a job function

– Whether applicant can satisfy the attendance requirements or how many days absent (but not the reasons for absence)


• Medical examination – EEOC defines as a procedure or test “that seeks

information about an individual’s physical or mental impairments or health.”

– Medical examination is not a physical fitness or agility test unless employee’s physiological or biological response is being measured.

– An employer may require applicant to submit to a medical examination after conditional offer of employment


• Medical examination – ADA permits testing for illegal drugs

– Health Insurance Portability and Accountability Act of 1996 (HIPPA) restricts the use and dissemination of personal health information

– Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from disclosing genetic information

– Employer must make an individualized assessment of whether an applicant or employee poses a “direct threat” to health or safety of others

Pre-employment Questions General Guidance

Problematic Questions that Identify the Applicant’s

• Age

• Relationship

• Birthplace or citizenship

• Ethnic, social or religious affiliations

• Eligibility for Fidelity Bond

• Height or weight

• Sick days

• Military service

Pre-employment Questions General Guidance

Problematic Questions that Identify the Applicant’s

• Military service

• Political affiliations or union memberships

• Physical/mental disability

• Qualifications that are not strictly job related

• Race or color or attitude towards other races

• Sex, child-bearing or child-care plans, spouse

Documents

G Osborne Hiring Process and Related Issues1-9-2015