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The U.S. Court of Appeals for the Seventh Circuit recently reversed its prior decision and upheld an Illinois district court ruling that the federal Age Discrimination in Employment Act (ADEA) does not protect job applicants from disparate impact claims. But beware, as this seemingly apparent win for employers in Illinois, Indiana, and Wisconsin may drive employees to bring their claims under more forgiving state anti-discrimination laws, which often provide for greater damages.

Case background and decision

The plaintiff in Kleber v. CareFusion Corporation, No. 17-1206, 2019 WL 290241 (7th Cir. Jan. 25, 2019) was a 58-year-old attorney who applied for and was denied a general counsel position. The job posting sought an attorney with three to seven years of experience. CareFusion hired a 29-year-old attorney for the role. In his lawsuit, Kleber argued that CareFusion’s “cap” on experience effectively weeded out older applicants.

Initially, a three-judge Seventh Circuit panel found that the ADEA did apply to disparate impact claims by job seekers. But when the full Seventh Circuit reheard the case, it ruled 8–4 that Section 4(a)(2) of the ADEA covers only discrimination against current employees, meaning that non-employee job seekers cannot sue companies for so-called disparate impact claims alleging neutral practices that adversely affect older applicants, thus affirming the district court’s original finding. Comparing the text of various ADEA provisions, the full Seventh Circuit’s majority opinion concluded that Congress did not intend for the Act to cover applicants asserting disparate impact claims.

Importantly, the ruling does not limit an applicant’s ability to sue for intentional age discrimination, such as a potentially ageist comment by a recruiter or a job posting stating “applicants over 40 need not apply.”

The Seventh Circuit joins the Eleventh Circuit (covering Alabama, Florida, and Georgia), which issued a similar ruling in 2016.

Continue Reading Seventh Circuit limits ADEA’s scope, but beware state law

The new year brought a new concern for Illinois employers: a mandatory expense reimbursement law. As of January 1, 2019, Illinois employers must reimburse all “necessary expenditures” their employees incur in the scope of employment directly related to services performed by the employer.

The amendment to the Illinois Wage Payment Collection Act (IWPCA) defines “necessary expenditures” as “all reasonable expenditures … required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” 820 ILCS 115/9.5.

The amended law is applicable where:

  • the employer “authorized or required” the employee to incur the expense; and
  • the expense request, along with appropriate documentation, was submitted within 30 calendar days – unless a longer period is provided for by the employer.


Continue Reading Illinois mandatory expense reimbursement law now in effect

A reminder to all employers with any employees who work in Chicago or elsewhere in Cook County, Illinois: ordinances mandating that you provide paid sick leave to employees who work in Chicago or Cook County take effect July 1, 2017.

As we previously reported here, under the Chicago Paid Sick Leave Ordinance (and the almost identical Cook County Earned Sick Leave Ordinance), employers must begin awarding every employee who works in Chicago or Cook County one hour of paid sick leave for every 40 hours worked, up to at least 40 hours of paid sick leave per year (plus up to at least 20 unused rollover hours from the previous year). Nearly any employee who works at least 80 hours within any 120-day period in either jurisdiction qualifies, but employers may require the employee to wait up to 180 days after starting employment before they may use accrued paid sick leave.  Employers can avoid the carryover and accrual requirements by “frontloading” their employees with equal or greater leave at the start of each calendar or benefit year.

Recently released interpretative rules from the City and County have added the following clarifications:

  • According to the City’s rules, “[i]n the case of a conflict between the [City’s] Ordinance and the Cook County Earned Sick Leave Ordinance, the [City’s] Ordinance shall prevail within the City.”
  • After the first year of employment, an employee may use a maximum of 60 hours of paid sick leave (unless the employer has a more generous policy)
  • An employee may use paid sick leave in one-hour increments, unless the employer establishes and disseminates a written minimum-use policy
  • An employer is not required to allow paid sick leave use while the employee is on disciplinary leave
  • Paid sick leave must be paid no later than the next regular payroll period beginning after the leave was used
  • The following employees are not covered under either ordinance:
    • Employees working in construction covered by a collective bargaining agreement (“CBA”)
    • Employees covered by a CBA entered into before July 1, 2017
    • Employees covered by a CBA entered into on or after July 1, 2017, and that explicitly waives their rights under the ordinance(s)
  • Immigration status does not affect an employee’s rights under either ordinance
  • A private right of action is possible under both ordinances


Continue Reading Chicago-Area Employers: Paid Sick Leave Begins July 1

As previously reported, the Fifth Circuit recently enforced a private settlement of certain FLSA claims. More recently, however, Judge Christopher Conner of the U.S. District Court for the Middle District of Pennsylvania reached the opposite conclusion and agreed with the majority view of courts that unsupervised FLSA settlements are not enforceable.

Continue Reading Pennsylvania Requires Court Approval for Enforcement of Wage/Hour Settlements Under FLSA

Recently, the Fifth Circuit created a crack in a thirty-year old doctrine, based on the Eleventh Circuit’s Lynn’s Food Stores, Inc. v. United States decision and followed by nearly all federal courts, that wage and hour claims brought by individuals under the Fair Labor Standards Act (“FLSA”) can be settled only with the signoff of

Late last week, following a recent trend, the Seventh Circuit overturned its own long-standing precedent to now hold that the Americans with Disabilities Act’s (ADA) “reasonable accommodation” provision requires employers to place disabled employees who cannot perform the essential functions of their job even with reasonable accommodation in vacant positions for which they are qualified. EEOC v. United Airlines, Inc.
Continue Reading Seventh Circuit Joins Tenth and DC Circuits in Requiring Employers to Place Disabled Workers in Vacant Jobs

For decades, U.S. employment lawyers have stressed the need for employers to inject into employee handbooks and elsewhere that “your employment is at-will, terminable at any time, with or without notice.” This magic language, coupled with the legal presumption that an employment relationship is at-will unless otherwise stated, has generally been sufficient to overcome any argument