Keefe, Campbell & Associates, LLC

Editor’s comment: We recently had a friend of the firm ask us this question, and we answered with a hearty affirmative.

We have seen these types of affirmative signings in a variety of formats throughout the years – simple weekly/pay period signings on a timesheet, every day signings on a time clock punch slip, and even actual individual documents. Essentially, it is our reasoned legal opinion asking questions of whether any workplace injury occurred in no way infringe on a worker’s rights and could be incorporated into such a document without legal detriment to the employer.

In fact, one could easily incorporate the following statements as a simple form or addendum an employee could either check of as affirmative, or outline answers to if needed:

I am injury free and have not been involved in any work accidents or injuries other than as listed below.

I am physically able to perform all work assignments without accommodation; if accommodation is requested, outline in Description section below

I understand that I am to report all work accidents or physical problems, no matter how minor, to my supervisor immediately.

When asked if something like this would run foul of the ADA or of any similar law of the state of Illinois, we again have to emphatically confirm it is our reasoned legal opinion this type of reporting is proactive behavior intended to help workers, and such accurate reporting of injuries with hopefully swift treatment is a goal to be worked toward, not an action to be punished.

If you would like a draft document of the type referenced in this article, please send a reply email and we would be happy to tailor one to your firm’s needs.

This article was researched and written by Arik D. Hetue, J.D. If you have thoughts and comments, please send a reply to ahetue@keefe-law.com, or post them later today on the blog at www.keefe-law.com/blog.

Editor’s comment: For our Illinois readers who manage Illinois employees and facilities we are always stunned and amazed how many employers cannot commit to drug and alcohol-free workplaces because it means they personally can’t drink at lunch or on the job. We point out the Illinois WC system creates a whopping incentive not to have drunks or impaired folks on your premises. One accident caused by or to a drunk or impaired worker can cost literally hundreds of thousands or even millions of dollars. Our rule is anyone caught drinking alcohol or doing any legal or illegal drug which causes impairment during work hours is counseled and given the choice to elect EAP (Employee Assistance) or termination.

Please remember the Illinois WC Act and its implementation by our Commission and reviewing courts is wildly unpredictable in this state. In Paganelis v. Industrial Commission, the Supreme Court denied benefits to a driver who was .238 drunk and was seriously injured in a crash. But later rulings sometimes “open the door” by not aggressively penalizing drunks and drug addicts in the Illinois workplace—one awful IWCC ruling actually rewarded an amputee who was drunk and lost his arm but received benefits in a Commission decision finding he was a “functioning alcoholic” and therefore wasn’t injured due to his impaired state. We assure you every drunk and drug addict makes the same argument when bad things happen to them and those around them in the workplace. We assure all of our readers, your tolerance level for anyone being impaired on your work floor should be aggressive—don’t let a so-called “functioning” drunk or drug abuser put you out of business when they injure themselves or others and you have to pay them thousands in medical bills, lost time and permanency.

Drug-Free Work Week is the perfect time to launch a Drug-Free Workplace Program if your organization does not already have one. Such programs are complements to other initiatives that help protect worker safety and health. To learn more about them, visit DOL’s Working Partners Web site at http://www.dol.gov/workingpartners/. In particular, the site’s Drug-Free Workplace Advisor Program Builder offers detailed guidance on how to develop a Drug-Free Workplace Program, starting with the first step: a written policy.

If your organization already has a Drug-Free Workplace Program, Drug-Free Work Week is a logical time to ensure the program is adequate to meet current needs and to remind employees about its important role in keeping them safe on the job. One way to do this is to distribute a new copy of your drug-free workplace policy, along with a positive message about valuing health and safety, and then provide an opportunity for them to ask questions about it.

To achieve a drug-free workplace, it is critical that an organization educate its workers about the nature of alcohol and drug use and its negative impact on workplace safety and productivity. Drug-Free Work Week is a natural time to step up such efforts through training sessions, guest speakers or brown-bag lunches. Working Partners offers more information on employee training, including ready-to-use training materials. New resources available this year include Fast Facts (an informational card for employees about their role in keeping their worksite drug and alcohol free) and a series of five Tool Box Talks (brief speeches intended for delivery by foreman on construction or factory worksites).

Some observers estimate workplace substance addiction annually costs U.S. employers as much as $250 billion and substance-related deaths are equal to a jumbo jet plane crash every day. In the workers’ compensation arena substance abusers register 50% of all claims and five times more claims than average. This is based on statistics from the National Council on Compensation Insurance.

If you have thoughts, comments or questions on Drug-Free Work Week or implementing a drug and alcohol-free program, send a reply.

Editor’s comment: While looking up other stuff, we note NCCI, the U.S. top statistical analyzers of WC and other data has published a sweeping workers’ compensation survey with their analysis on the web at:

https://www.ncci.com/Documents/WorkersCompensationClaimFrequency2008.pdf

They report:

1.       Over the last five years, there were significant declines in total lost-time claims frequency for all U.S. industries, geographic regions, and employer sizes

2.       The number and frequency of permanent total claims have increased significantly over the last four years. All major causes of injury contributed to the rise

3.       The rise in permanent total claims appears to be driven primarily by workers age 50 or under

4.       While claim frequency generally decreases as risk size increases, single-state risks in some classes have higher claim frequency at the higher payroll sizes than at lower payroll sizes

It is easy to conclude that, as claims have fallen off, fewer claims representatives are necessary. NCCI estimated claims frequency fell 4.0% for 2008. Further declines are expected this year, as employers and jobs continue to shrink with the U.S. economy.

But NCCI also noted high-cost permanent total claims are the exception to the decrease in falling claims while indemnity and medical severities are rising. This spike in T&P claims means more complex cases that require greater attention are going up. We assure our readers this is one of the reasons veteran defense attorneys are needed in Illinois.

We consider the report required reading for industry specialists in medical, legal, claims and HR fields. Please take a look and provide your thoughts and comments.

Editor’s comment: Here are some thoughts.

Hire carefully, particularly when and if the economy recovers. One concern we all have is hiring workers’ compensation system abusers. There is nothing more galling to a human resources or risk manager to find out after hiring a worker to then learn they have filed six other claims and already received six hefty settlements and are now looking to you as Lucky No. 7. There are a couple of legal strategies in the hiring process that may assist you to avoid that status. Please don’t hesitate to consult with us, as veteran defense attorneys in the process—we don’t suggest you implement these without advice of counsel.

First, make sure your employment applications allow you to fire someone for lying on the written application or during the interview process. If you don’t do so, change your policies right now. Next, read the federal ruling in Carter v. Tennant Company and put the “magic questions” from that case into your employment application forms. The ruling is on the web at: http://altlaw.org/v1/cases/1132324. If you are not familiar with the ruling, it came from the Seventh Circuit Court of Appeals. All of Illinois is within the Seventh Circuit. The next higher court after the Seventh Circuit is the United States Supreme Court. The Supreme Court did not take the case and therefore didn’t change the ruling, so it remains the last statement of the law on the issues covered.

Carter v. Tennant Company holds:

An Illinois employer cannot ask whether an employee ever:

•         Filed a claim for benefits under the Workers’ Compensation or Occupational Disease Act.

•         Received benefits under the Act.

The Court expressly found it permissible to ask a prospective employee if they:

•         Ever had any occupational injuries, accidents or illnesses.

•         Lost time from work for a work-related injury or illness.

•         Saw a doctor for any work-related injury or illness.

We recommend all of our clients and readers modify their employment applications to add the last three permissible questions. If you have questions or concerns, let us know.

Second, consider Criminal and Background checking for all but the most menial of employment positions. If you are hiring truck drivers, construction workers or for any position that pays over $15 per hour, you are incurring a substantial liability and should be sure you are hiring someone who is otherwise a solid citizen. There is a moderate cost you have to balance against the cost of hiring blindly.

Third, consider post-hire Fitness for Duty Evaluations. We have been advised such evaluations have questionable legality. We consider that legal position impractical and misguided. Illinois is a state where it is dramatically easier to aggravate an existing condition that it is to have what many of us consider an accident. We still subscribe to the wildly liberal theory that the work doesn’t have to be “the” cause; it just has to be “a” cause. We had a woman walk onto a construction site with pre-existing carpal tunnel syndrome. She worked six days and the new employer was found by the Illinois Appellate Court to be fully responsible for the whole condition, including surgery, lost time and permanency. Our clients felt like John Dillinger had just driven up with his tommy-gun to steal thousands from them. Also, as we have reported in the past, one Illinois law firm touts their success in getting two major “life-changing” wage loss settlements for the same worker!!

We are confident the condition could have been found in a Fitness for Duty Evaluation performed by someone like Dr. Michael Panuska or any solid provider. Again, there is a cost involved but it has to be worth it when one compares the concomitant workers’ compensation exposure for someone who has had a cervical fusion that you have innocently hired for a job that involves heavy lifting. Such a hire is a ticking time bomb waiting to go off. If you don’t have someone ask the worker about the fusion and their safe lifting range, they aren’t going to tell you and you may have to pay thousands.

Fourth, after you have hired someone consider Enforced Accident Reporting on a regular basis. We reviewed this concept in last week’s KC&A Update and won’t repeat it here. If you need the form to consider it, send a reply.

Fifth, in heavier jobs, Find/Source/Struggle to isolate and implement permanent light work, if at all possible. While it initially sounds silly; we assure you one of the biggest opponents of reasonable accommodation under the ADA are Illinois’ hyper-aggressive labor unions. They want their workers to enjoy the largesse that comes from our wage loss differential benefits system. We hope some major Illinois employer some day files suit to block unions from not allowing reasonable accommodation for injured workers.

For truck drivers, construction workers, nurses and other folks involved in “heavy” work, we consider permanent restrictions to be a “golden diagnosis.” Please don’t think it happens by mistake—injured workers are told to ask the doctors for them. When a truck driver or other worker who arguably has to lift up to 75 pounds is told by his physician he can no longer lift more than fifty pounds, the employer is thrown into a maelstrom of Illinois wage loss differential benefits. Your reserves, claims experience and overall payout will rise dramatically. The employee may start into what we call “bad job, right away” and seek a low paying job to maximize their wage loss claim.

All of this can be avoided if you can find the worker a job within his/her restrictions as ADA requires. The work doesn’t have to actually be available if you are laying off in a bad economy—it has to be something you are continuously ready to offer. Yes, we understand your unions may stand in the way—you have to go to the unions and ask whether they enjoy having members in Illinois or not. We assure you the unions take advantage of the fact most managers don’t understand the nuances of workers’ compensation in negotiations. If you need help with it, send a reply.

Sixth, Avoid Litigation in Accepted Claims whenever and wherever possible. We are aware of a major Illinois employer in downstate Illinois that saved thousands if not millions by implementing a pro se settlement program to resolve accepted workers’ compensation claims. Their idea was to reach out to injured workers and explain the system and where they had accepted “hard-tissue” claims involving surgeries and fractures simply make a fair offer upon the worker reaching MMI. Understanding this doesn’t truly help us as defense lawyers, we are still feel as counselors to Illinois business, we have to let you know it is a strong claims strategy. Some times you may want to do “pink-sheet” settlements where claimant is brought before the IWCC and sometimes you may want to do “green-sheet” settlements that are simply payment of permanency—you have to fully understand the difference so if you have questions, send a reply.

Also, if you have run a pro se program and still have lots of workers who “lawyer-up” before you get a chance to talk to them, after their claim is closed, you can and should ask such workers how to avoid future litigation. If you want thoughts and concepts in implementing a pro se program at your work sites, send a reply.

Having given you six strong money-saving concepts, we ask our readers for their thoughts and ideas. We have a number of clients asking every day how to cut overall litigation in this state and what the best path might be for their organization. We know many of our readers are brilliant and we ask that you shine your intellect and best thoughts in our direction. If you have any further ideas or concepts, please send a reply.

Editor’s comment: We want all Illinois human resources, benefits, safety and other managers to understand the “rules” in workers’ compensation claims handling to the extent it affects your day-to-day business practices. Some of these concepts are common sense but some of them involve nuances you need to note. We feel Illinois workers’ compensation insurance carriers/TPAs should work with your accounts to be sure they follow these rules to minimize premiums and their experience.

Enforced accident reporting

When you are laying off folks in this rotten economy, consider asking them to sign a form that indicates they are or aren’t injured or suffering the effects of an injury before being laid off. You may even want to consider asking such questions well in advance of a coming lay off. The idea is to affirmatively reach out to your work force and ask these questions to see what the employees will say while they are still your employees. Some of our clients require the “enforced accident reporting” forms to be signed every time any paycheck is received.

• If you get a no answer, it may provide a defense when you get what we call “heartburn” claims that drive risk managers nuts when you first find out about a claimed injury after the plant is shut down and you can’t investigate because everyone is gone. It is even worse when you first find out about an injury claim from your former employee’s lawyer.

• If you get a yes answer, assume you are now aware of an accidental occurrence or occupational exposure and start your detailed investigation straight away. Pull security video. Consider web-cam statements. Inquire about all aspects of the claimed occurrence and potential disability. Project and track medical recovery to MMI. Seek to resolve all such claims without litigation whenever and wherever possible.

We cannot guarantee positive results but this HR/claims management concept should be somewhat inexpensive and may slow down phony claims. We don’t know why more Illinois insurance companies and TPA’s don’t require their accounts employ this concept, as it might directly impact overall insurance costs.

We have a form you may consider as part of this effort. If you are interested, send a reply.

Parking lots

If you own and provide a parking lot at your work sites, it is much more likely to have a fall-down or other injury that may be compensable if the lot is not open to the public and is limited to your workers only. If the lot is open to the public and your workers park in the lot, do not designate where employees should park. The ruling in the Wal-Mart v. IWCC decision held such fall downs are “risks common to the public” if the worker falls in a public parking lot without any direction as to the site they park. In a ruling that was issued shortly after the Wal-Mart decision, a hair salon employee fell down after being encouraged to park in the back of the company parking lot and benefits were ordered.

On a similar note, if you create some public entrances and some employee-only entrances, injuries arising in the employee-only areas are much more likely to be ruled compensable. It is your call on whether you want that heightened exposure but our vote is to only have employee-only entrances if you truly have to.

Recreational and rehabilitation activities

If you are going to have your workers

• Hold a summer picnic or get-together for all or some of your workers;
• Allow employee to work-out before, during or after work hours;
• Allow them to play sports like baseball/softball, basketball, soccer, tennis on company-sponsored teams;
• Have a going-away or testimonial lunch or dinner;
• Attend a big league ball game or other company-sponsored event;
• Give away personal trips in company raffles or safety programs;
• Enter needed drug or alcohol rehabilitation programs;
• Get counseling for marital or non-marital couples issues

You may have high workers’ compensation exposure you can avoid. The rule in Illinois is such attendance has to be voluntary. You have to be able to demonstrate participation and the activity offered is voluntary and not implicitly or explicitly required as a condition of work.

If you “order or assign” the employee to attend such activities, anything that happens in the program may be compensable under Section 11 of the Illinois Workers’ Compensation Act. Litigation to interpret that Section is expensive and outcomes may be difficult to predict. If you pay employees while they attend such events and don’t pay employees who don’t attend, you will have workers’ compensation exposure because our Appellate Court said that is implicitly “mandatory” because employees need their pay.

We have a draft release that can be signed by employees that will confirm they understand and perceive participation to be voluntary. The release will clearly document and outline your workers are not being “ordered or assigned” to participate. If you want a free copy of the release for your use, send a reply.

Fights/Employee violence

The preliminary guideline in Illinois is to greatly discourage fighting or violence in the work-place. Consider making it an enforced safety rule to terminate any employee(s) who instigate physical contact with or against other workers. Never, ever ignore threats, harassment, bullying or intimidation—always address such issues in a progressive fashion to avoid both workers’ compensation  and employment practices claims. All actions taken to address such issues will help to build your defense case-in-chief, should a later claim be filed.

The rule from workers’ compensation where you have a fight is the aggressor doesn’t recover and the non-aggressor does get WC benefits for their injuries. The weirdest thing that happened in Illinois is two female workers came to blows and the fight was recorded on security tape. They both struck each other and made contact at precisely the same time. The Commission initially denied benefits to both. The Appellate Court remanded the ruling back to the Commission, ordering them to determine who the aggressor was and who wasn’t. With respect to the Appellate Court, if you ever have seen hockey fights, lots of them involve dual aggressors and we don’t see why there should be a rule that someone has to get benefits and someone doesn’t—where both parties are aggressors, both claims should be shut out.

If you have thoughts, comments or questions about anything outlined above, please send a reply.

Editor’s comment: We keep getting asked so we want to outline the legal issues relating to general release/resignations in Illinois. Some of this advice will relate to workers’ compensation claims and the rest will relate to employment practices liability.

Definitions:

1. Release: To give up a right as releasing one from his/her obligation to perform under a contract, or to relinquish a right;
2. Resignation: An oral or written statement that one is resigning a position.

Of great concern to the human resources professional is getting all mutual rights and responsibilities to end when the worker leaves your place of employment. Illinois generally remains an “at-will” state which means an employer can arguably terminate an employee for any reason and at any time, so long as there is no discriminatory action. Conversely, the typical employee can leave employment at any time and for any reason, be it personal or professional. To avoid or greatly minimize litigation, whenever and wherever you see trouble brewing when you are trying to get rid of a nettlesome worker, consider a written general release/resignation signed by the employee. If you need a sample form, we are happy to share ours, so simply send a reply requesting one and we will email it back.

In the workers’ compensation area, there are various concerns about the legal effect of resolution of the workers’ compensation claim when the employee simultaneously resigns at the time the workers’ compensation claim settlement is approved by an Arbitrator or Commissioner. Coincidental resignation by an employee can occur as a combination of a multitude of factors including a personal decision not to return to work, the lingering physical or social effects of the workers’ comp injury, labor disputes with the employer, problems with fellow employees or the union and loss of job due to plant or company closing.

A prudent workers’ compensation professional must understand workers’ compensation benefits are only one of a variety of benefits or claims which an employee might receive at the end of the employment relationship. If one resolves only the worker’s compensation claim, you may be leaving all employee’s other employment rights, benefits or claims ‘unresolved.’ As attorneys we always seek certainty in an uncertain world. An excellent example of this concept occurs when an employee resigns as ‘part’ of the settlement of a work injury claim. Your concern is the employee might later claim they were ‘coerced’ into the resignation to receive any workers’ compensation settlement at all. While we have not yet seen a reported workers’ compensation case on a claim for retaliatory discharge as a result of a coincidental resignation, your organization does not want to have to litigate the issue as a matter of first impression in the Illinois courts.

Second, an employee may have labor disputes pending. These disputes might be pending at the local grievance level or at a national level as a result of an appeal of local determination. Obviously, a resignation as part of a workers’ compensation settlement leaves such labor disputes ‘pending’ without a proper resolution.

Also, it is important to recognize workers’ compensation benefits arise from state statutes. The settlement of a state workers’ compensation claim has no direct impact on the employee’s federal rights. There is a plethora of federal statutes which impact on an employee’s rights while working and the employee’s rights at the time of termination and resignation. These include the American with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Employment Retirement Income Security Act and the National Labor Relations Act, to name a few.

The obvious response of the HR or claims professional when presented the above list is to remark, “What does that have to do with my claims?” The reply has to be your organization pays you to recognize and anticipate claim-related problems and to forestall them, if at all possible. Therefore, it is our recommendation that you do not ignore an employee’s claim or rights with regard to any common law or statutory claim whether it is a federal or state statute. In an appropriate claim, when the employee resigns, we recommend that you obtain a common law release as part of that resignation which specifically outlines both federal and state rights and ‘terminates’ (or in some instances, reserves) rights at the time of resignation/settlement. Use your knowledge and expertise to control the situation as much as possible.

An appropriately drafted general release, based upon appropriate consideration (in lay terms, usually money), should effectively defeat or block an employee from maintaining any suit or claim following resignation. We do not feel that you are sufficiently protected in obtaining a resignation with a general release if it is not supported by consideration paid by the employer.

A. There may be rights which you want to survive the resignation

At the time that the employee resigns, there are major issues which you should certainly address as you may want to work with the employee and not extinguish all of the employee’s rights when he or she resigns. The most important of these rights are pension benefits. An employee may be part of a pension or profit sharing plan which he or she should certainly be entitled to due to contributions by your organization and the employee. We have generally advised there is a west coast decision which ruled a general release blocked an employee’s pension claim–a result which may have been unintended by either employee or employer and which would certainly result in a fountain of litigation. Where an employee has pension rights or benefits available, it would seem appropriate to preserve such rights at the time of resignation. The general release should be tailored to cover the possibility.

A second concern is COBRA—you are going to have to allow the employee to maintain health care coverage if such coverage was afforded while the worker was employed. A general release/resignation should cover this federal requirement.

A third and more delicate issue is unemployment benefits. With the recent changes in this law, such benefits may provide substantial benefit to an employee who has left employment. However, such benefits allow the employer to dispute such a claim following application by the employee. If you are willing to allow the employee to make such a claim and not contest the question of resignation versus termination, you may be placing your organization in a contradictory position. If you want the employee’s unemployment benefits to be treated as if he or she resigned and thereby render the employee unable to obtain benefits until after the waiting period for a resignation, it should be clearly outlined in the general release. Therefore, it is our suggestion that such a determination be made in conjunction with counsel and all matters should be covered in settlement negotiations. Be certain to confirm the final decision on unemployment benefits is up to the applicable state agency.

B. When should a general release/resignation be utilized?

Any time an employee is leaving your employ for any reason and is simultaneously entering into a workers’ compensation settlement, we recommend that a combined general release/resignation strategy be considered. As a workers’ compensation professional, even if you settle a “small” claim where a petitioner is changing jobs, it is a prudent idea to consider obtaining a common law release and resignation. The worst nightmare of any workers’ compensation professional would have to be resolving a total and permanent disability claim with a coincidental resignation. Immediately following completion and payment of the settlement, petitioner indicates they are withdrawing the resignation and seeks accommodation consistent with the Americans with Disabilities Act, claiming to be unaware of their disabled status and the requirement the employer accommodates the worker. Even worse would be a claim the employer coerced the resignation as part of settlement to take advantage of the disabled status and thereby retaliatorily discharged them.=

These are just two of the examples which might conceivably occur. There are a variety of other potential scenarios which could just as easily develop which might leave the workers’ compensation professional in an embarrassing or annoying position. Your highest priority must be to insure that once you have settled the workers’ compensation claim with a coincidental resignation, every effort is made to insure the resignation ‘sticks.’ You do not want petitioner to return with any sort of litigation or benefit claim which you have not contemplated and have ‘allowed’ him or her to make (such as the claim for pension benefits outlined above). Every possibility should be considered as part of settlement negotiations. It is our recommendation the only way to insure this has taken place is to obtain a written general release/resignation with appropriate consideration to support same.

C. One caveat: workers’ compensation lawyers may not be well-versed in employment law

One interesting aspect of utilizing a general release in conjunction with a workers’ compensation settlement is the workers’ compensation attorney is not typically retained to provide advice with regard to the wider range of employment law issues and may be ill-informed with regard to same. Illinois workers’ comp attorneys are retained by their clients pursuant to a specific statutory language on a Commission approved form. This form sets out the narrow scope of the attorney’s retention and limits the fee to the workers’ comp claim only. It is an open question as to the amount of the fee the attorney might receive on monies paid to support the general release/resignation.

Many workers’ compensation lawyers will balk at being asked to review the broader employment law issues if you tender a general release and resignation at the time of the worker’s compensation settlement. It becomes incumbent upon you to insist the attorney provide the client/employee with appropriate legal advice or refer the matter to an employment lawyer competent to advise the employee.

Remember the workers’ compensation lawyer when settling a total and permanent disability claim typically receives a hefty fee. As part of the services which earn the fee, the lawyer should be equipped to fully and properly advise the client with regard to the bundle of rights which may be affected by the settlement of the workers’ compensation claim along with relinquishment of employment coincidental thereto. If the attorney gives you any indication they are unable or unwilling to properly advise the client, you should insist it is their responsibility to do so to avoid any claim by the employee they did not receive effective representation by counsel. Do not allow the workers’ compensation lawyer to claim ignorance or apathy and utilize it to the benefit of the client. You have to insist and insure the attorney has fully advised petitioner of the rights being preserved or being given up to avoid later confusion or litigation.

Please also remember the workers’ compensation hearing officer in Illinois and most states will not consider, review nor approve a release/resignation—it is outside their statutory authority. Trust us; they have enough headaches in dealing with the many forces that pull on them from every direction. They don’t need to be involved in general employment law concerns.

D. A note of caution in setting up the settlement with a release/resignation

When you present the settlement to opposing counsel, it is our suggestion you do so by first splitting the workers’ compensation settlement and monies reserved to support the general release. For example, if it is your intention to settle the case for a total of $150,000 to include monies to support the release/resignation, present the settlement to counsel by indicating you will pay $145,000 to settle the workers’ compensation case. You should also indicate you will provide an additional $5,000 to support the coincidental general release and resignation.

The purpose of bifurcating the finds in advance is to avoid the suggestion you are intimidating or coercing the employee to settle the worker’s compensation case and part of the plan was you would not pay any monies in settlement unless petitioner was forced to resign. You want the monies that legal effect to the resignation and release to be “fresh money.”

E. Do you need two defense lawyers to effectuate a general release/resignation?

There is a major U.S. insurer that requires its accounts to hire separate defense counsel when they are seeking a general release/resignation. For our clients who require it, we are happy to participate. But in all candor, we consider it a complete waste of time and money. The problem is workers’ compensation insurers aren’t paid to resolve general employment rights but when they hire defense counsel to represent you, the attorney’s responsibility is to ethically protect you in every way possible. If that ethical responsibility includes spending some time covering your employment liability, so be it.

F. Your overall goal in obtaining a release/resignation.

The goal of the workers’ compensation professional in settling a claim where petitioner has left employ is to be certain the employee does not come back or cost you thousands after they leave. You also want to be similarly satisfied you have no exposure to litigation or administrative claims subsequent to the resolution of the employment status. We strongly suggest you consider a strategy employing a coincidental general release/resignation in conjunction with the workers’ compensation settlement to insure this necessary result. We also strongly caution that you should always discuss this with counsel whether petitioner is represented by an attorney or not.

If you have questions or concerns about handling a general release/resignation or if you want our form, please send a reply or forward your comments and concerns.

Editor’s comment: This ruling again confirms an individual can file suit on the barest of allegations, but must show they can potentially prove all necessary elements of a claim—including initially showing a right to be protected under a federal act such as FMLA—to survive summary judgment. Simply citing discrimination or arguing interference with a federally protected mandate is not sufficient. In a side note, Petitioner sued the supervisor for defamation for alleged unfavorable statements including those made at a grievance hearing.

In de la Rama v Illinois Dept of Human Services (No. 07-1156 September 2, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Northern District of Illinois affirmed summary judgment was proper in a claim brought alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., interference with her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. and common law defamation.

De la Rama is a Filipino-American who was employed as a registered nurse at Chicago-Read Mental Health Center (Chicago-Read), a residential facility for mentally ill adults run by the Illinois Department of Human Services (the Department). From January 2004 to January 2005, Mary Zukowski was de la Rama’s supervisor. Pursuant to Chicago-Read’s leave policy, de la Rama received 12 sick days per year, which accrued at a rate of one sick day per month. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not convey this information to her employer until much later. Instead, de la Rama sporadically submitted notes from physicians stating she was ill. Eventually several work days she missed were treated as unauthorized absences (UAs) totaling 24 UAs. After de la Rama returned to work in 2005, she, her union representative and her new supervisor attended a pre-disciplinary meeting regarding these UAs. The parties decided de la Rama would not be disciplined for the UAs but that future UAs would trigger a disciplinary proceeding against her. De la Rama pursued a grievance in order to remove the UAs from her employment record. At the third-level grievance hearing, management and de la Rama’s union representatives agreed the absences would remain on her record but would never be used in any disciplinary proceedings against her.

On September 9, 2005, after receiving a right to sue letter from the Equal Employment Opportunity Commission, de la Rama filed this lawsuit alleging the Department discriminated against her because of her race and national origin. In addition, de la Rama complained the Department violated FMLA by refusing to allow her to take leave for a serious medical condition. She also brought a common law defamation claim against Zukowski, alleging Zukowski falsely claimed de la Rama’s absences were unauthorized and Zukowski made false statements about her during the third-level grievance hearing. On January 5, 2007, the district court granted summary judgment for the defendants which resulted in this decision on appeal.

It is well known that a plaintiff may prove intentional employment discrimination under Title VII by using either the ‘direct method’ or ‘indirect method.’ Rhodes v. Ill. Dep’t of Transp. Both methods require plaintiff to show she suffered a materially adverse employment action. The district court concluded de la Rama did not suffer any cognizable adverse employment action and thus, she could not proceed on her discrimination claim under either the direct or indirect method of proof. On appeal, she disputed that finding, arguing the recording and preservation of 24 UAs on her record constituted a materially adverse employment action. The federal Appellate Court explained in order to be actionable, “adverse actions must be materially adverse . . . meaning more than a ‘mere inconvenience or an alteration of job responsibilities.’ ” Oest v. Ill. Dep’t of Corr. It was also noted the Court concluded negative performance evaluations, standing alone, are not cognizable adverse employment actions. See, e.g., Sublett v. John Wiley & Sons, Inc.; Beamon v. Marshall & Ilsley Trust Co.; Lucas v. Chi. Transit Auth.; Smart v. Ball State Univ.. The Court discerned no reason to treat the UAs in this case differently than they treated negative performance evaluations or the inclusion of a letter of concern in an employee’s personnel file and noted the undisputed facts of this case persuaded the UAs do not in and of themselves constitute a materially adverse action because—pursuant to the agreement reached by de la Rama and her employer at the third-level grievance hearing—the UAs on her record do not have any effect on the terms or conditions of her employment.

In order to prevail on her FMLA interference claim, de la Rama was required to show:

(1) She was eligible for the FMLA’s protections,

(2) Her employer was covered by the FMLA,

(3) She was entitled to leave under the FMLA,

(4) She provided sufficient notice of intent to take leave, and

(5) Her employer denied FMLA benefits to which she was entitled.

The district court concluded de la Rama failed to provide sufficient notice of her intent to take FMLA leave and the Appellate Court agreed because, although an employee is not required to refer to the FMLA in order to give notice of her intent to take FMLA leave, she must alert the employer to the seriousness of a health condition. Calling in sick without providing additional information does not provide sufficient notice under the FMLA. De la Rama did not provide documentation of her fibromyalgia until October 4, 2004. Until that point, de la Rama informed her employer only that she was sick, which is insufficient to suggest she suffered from an FMLA-qualifying condition. The Court noted FMLA does not require employers to play Sherlock Holmes, scanning an employee’s work history for clues as to the undisclosed, true reason for an employee’s absence. The Court also noted there was simply nothing in the record to suggest the kind of “dramatic, observable change in de la Rama’s work performance or physical condition” that would excuse her from failing to notify the Department of her need for FMLA leave. Further, in light of the fact that de la Rama was permitted to take seventeen weeks of leave—five weeks more than the twelve weeks the Department was required to give her under the FMLA—the Court found it difficult to see how the Department interfered with her entitlement to leave at all. In fact, at oral argument her attorney stated de la Rama was not attempting to take FMLA leave when she called in sick in July and August. The Court noted this was a puzzling concession further obscuring the basis for de la Rama’s FMLA interference claim since it was undisputed the Department granted her FMLA leave after she submitted her written request in October. Because de la Rama received FMLA leave after providing notice in October 2004, and because she did not provide adequate notice prior to that date, summary judgment was affirmed.

Finally, de la Rama alleged that Supervisor Zukowski defamed her on two occasions. First, during July and August 2004, when Zukowski allegedly made unfavorable statements about de la Rama’s absences to some of her co-workers. The district court concluded Illinois’ one-year statute of limitations for defamation barred the claim based on these statements since de la Rama filed her lawsuit in September 2005. The second incident of defamation supposedly occurred during the third-level grievance hearing, when Zukowski told “false stories” about de la Rama’s behavior while she was enjoying the unauthorized absences and characterized de la Rama’s doctors’ notes as deficient. The district court concluded the statements “concerned only de la Rama’s failure to navigate through the proper procedures and paperwork that would entitle her to extended time off,” and thus, did not fall into any of the categories of defamation per se under Illinois law.

This case is also another example of the concept that “you can be sued by anyone for anything”. The Plaintiff in this case obviously was availed of multiple avenues to address her concerns and continued to litigate after every determination which did not suit her, going so far as to file common law claims against the supervisor without any real basis in evidence. It also again confirms that documenting effectively will help avoid liability for claims via summary judgment, but nothing can keep an employee from filing suit if the inclination strikes. We again remind all employers to ALWAYS DOCUMENT to bolster your defenses and minimize the costs of litigation. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.