Anderson Law Offices

11/07/2025

Employers in Illinois and elsewhere: Beware of going to trial with dubious proofs.

Retaliatory discharge tort cases require this proof: 1) the plaintiff was employed, 2) the plaintiff was fired, and 3) the dismissal violated a clearly mandated public policy. The complaint must plead a clearly mandated public policy, the plaintiff was protected in the exercise of protected conduct,

10/28/2025

https://www.linkedin.com/pulse/discrimination-claims-cannot-mix-apples-oranges-reasons-burr-anderson-pzdsc/

The federal court of appeals in Chicago recently reminded us that in discrimination cases, alleging better treatment of others similarly situated is not necessarily going to support a claim of illegal dismissal. The court also re-affirmed the limited probative value of exposing an employer’s “sh...

10/22/2025

BE CAREFUL WHAT YOU WISH FOR? Depending on the nature of their activity and business model, organizations using people to get work done from time to time are defending their subcontractor workforce classifications. It is extraordinary to wind up suing to assert employee status.

Classification problems can arise when a claim drops in the in-box for unemployment benefits by a person the organization had treated as an independent contractor ("IC"). Now the purported employer has to show: 1) the work was not typically performed by employees, 2) that how the work was done was not controlled by the organization, and 3) that the person in question maintained an independent livelihood with income from work elsewhere. All three have to be proved to avoid employee status.

A flip of the procedure to prove IC status has been playing out in a New York State appellate court, where the workers comp carrier for a construction firm is seeking review of a State's Workers Compensation Board order. The person, Trickey, has sought to avoid employee status. The carrier wants to demonstrate that Trickey, who was injured while setting trusses in the construction of a pole barn, sustained an injury in the course of and arising out of employment, and was not an IC. Trickey v. Black River Plumbers, 2025 NY Slip Op 05133. State law presumes anyone working on a construction site is an employee. The company's insurer is pushing for the employee classification since damages under the workers comp laws are generally far less substantial than if the injury is presented to a jury in court through a personal injury proceeding.

The appellate court put final judgment on the back burner, sending the claim back to the Board to deal more thoroughly with the three criteria referenced above.

Readers who run businesses should balance the risk of winning on the classification issue in one phase of employment law (workers comp) then being exposed for overtime and other features of workers who were IC and now employees.

10/22/2025

The Equal Employment Opportunity Commission is off an running with a fresh agenda...

Now that Brittany Panuccio has been seated as a Commissioner at the EEOC, the agency has a quorum and is expected to hand out tickets to employers who discriminate against Whites, males, and "Americans". This reactionary posture already had been introduced by the new Commission Chair with promises o

06/10/2025

The Supreme Court has held that all discrimination charges have to meet the same standard of proof. This includes so-called "reverse discrimination" claims, which as of this month are legally on the same footing, under federal, with the others.

The phrase “reverse discrimination” had been part of common parlance for decades.  Some federal courts, in part because the principal reason for Title VII was to redress the wrongs of discrimination against African-Ameri...

02/12/2025

With the gag orders generated by the Administration to prevent federal employees from talking about the reductions in services, we foresee "Pickering" cases proliferating. The US Supreme Court has ruled that public employees have First Amendment rights to speak out about matters of public interest, but not about their own personnel situation or about their job duties. In the context of what is happening now, it appears that the employee can a) wait until he or she is no longer employed, or b) while still employed write a letter to the editor or go on a talk show, start spouting. Address the impact on Americans generally of what is happening government-wide in this machete approach to trimming government fat, red tape, "administrative overreach," and corruption. Or the government services that the Administration claims are fat, red tape, "administrative overreach", or corruption. The more you make it about you, the less First Amendment protection you have.

07/05/2024

Has Adobe Acrobat been hacked? Or has Adobe gone completely outer limits? The main screen for Acrobat is LOCKED unless you sign up for some mysterious AI add-on. And if you do it because you had to open the screen, no choice, you buy, and then the lock happens again as if you should pay for the same add-on - again.

Has anyone else had this extremely annoying experience?

An Adobe customer care dude online provided instructions that may as well have been in machine language.

02/01/2024

Employers based in Illinois and most other states:

Pay practice misstep #1 - inaccurate or incomplete time and pay records. Paying cash in lieu of a check or auto deposit (or pay card) is at your peril unless the cash disbursement is documented and the employee signs off on cash in lieu of check, ACH, etc.

#2 - referring to employees as "salaried" or "hourly"; replace with "exempt" or "non-exempt" Being "salaried" does not by itself convert a non-exempt employee to exempt

#3 - refusing to pay overtime to someone on the team who worked the hours without authorization. Failure to follow the requirements of the workplace may lead to corrective measures up to an including dismissal. It's a discipline issue. But you still have to pay the overtime.

#4 - withholding from final pay because of missing company property or property damage, UNLESS the employee VOLUNTARILY agrees to the withholding AT THE TIME OF THE WITHHOLDING.

#5 - using an "independent contractor agreement" that does not reflect important parts of the reality of the work being performed. If the individual has a tangible source of income independent of what he or she is getting paid by the "engaging entity," that helps the argument that the person is not an employee. But if not, you may have a misclassification problem under State law. This is especially problematic in the construction industry.

11/10/2023

Reminders about remote and hybrid work arrangements:

They apply only to about two thirds of the entire American workforce. It is because of the one-third that shows up every day that the two-thirds can set up their office in their bedroom (and because the two-thirds generally can be more productive in a RWA, their work often gives value to the one-third).

PLUS

1. These arrangements are privileged work practices. There is no right to them unless contracted for in writing. The leverage that makes RWAs imperative is that employers are over a barrel because of manpower shortages and the fact that the value these workers bring cannot easily be shifted to others.

2. No remote worker has the right to relocate their home or other remote work site without the advance consent of the employer.

3. Because America's business has settled in with RWAs, shifting gears away from the practice has to be carefully implemented. Workers have gotten acclimated and will oppose any radical initiatives (surveillance software, home visits to assure the home office is safe), forcefully if necessary.

4. If robotic management software is being seriously considered, the employer HAS to sit down with all teams ahead of time to gauge worker attitudes and sell the necessity for the innovation. To not do so is a gross error.

5. Those in RWAs have eligibility for workers compensation if injured at home, where the injury arises out of and in the scope of the employer's work assignments.

6. In a return to work scenario that phases out RWAs, employers need to be careful not to impose the return to work on the disabled carte blanche, where the employer had accommodated those employees' need to work at home on the basis of their impairment, and were approving of the work output during the remote phase.

7. Employers must be formal about setting the point in work time when an employee goes on PTO or other absence. The employee and the employer must signal when the leave begins and when it ends.

8. In hybrid work arrangements for non-exempt employees where the main location for work is still out of the home office, travel time to the main office on hybrid days is not in the normal commuting pattern and could be characterized as on the clock. Hence if one day a week hourly employees travel to headquarters, the travel time to and from should be recognized as work time as a matter of company policy, or not.

07/28/2023

This development from the National Labor Relations Board: A law firm that had a “no gossip” policy fired two employees for violating it. They filed unfair labor practice charges at the NLRB this past January, also alleging that a second rule, “no recording devices” in the break room, broke the law. Their employer, Alexandra Lozano Immigration Law PLLC, has entered into a settlement agreement and will now pay $175,000 in back wages as part of the settlement. The case was handled by the Board’s Regional Office in Chicago. The two individuals appear to have been non-lawyers, hence protected under the law.

Although the Board did not make any finding as to the legality of the “no gossip” rule (or the one about recording devices), this story reminds employers that enforcing rules against inappropriate communications must be applied with care….and are risky if overly broad in scope.

07/17/2023

https://www.linkedin.com/pulse/federal-judge-orders-new-bipa-trial-damages-jury-gave-burr-anderson/?published=t

Three weeks ago Judge Kennelly of the federal district court here in Chicago granted the motion of BNSF Railway for a new trial on the damages in a case in which a plaintiff class comprised of truckdrivers sued over violations of the Illinois Biometric Information Privacy Act (BIPA). Biometrics is t