January 2010 Roundup:

 New Direction in Covenants

Not to Compete in IL?


Post-Work Wash-up
Not “Work” Time

Even with HazMats


FMLA Plaintiff Lays Egg

with Retaliation Claim


Employee using

Marijuana gets

Workers Comp

 1.         The Illinois appellate courts have, for over fifteen years, required an employer to show a “legitimate business interest” when seeking injunctive relief to stop a former employee from competing.  Three elements needed to be proved to get a TRO:  a reasonable geographical limitation in the covenant not to compete, a reasonable time restriction in the covenant, and the “legitimate business interest.”  Those seeking to enforce covenants could be obstructed even though the place and time restrictions were reasonable, and many decisions had denied equitable relief on this basis.

             In Sunbelt Rentals Inc. v. Ehlers, __IllApp3rd__, 29 IER 1475 (4th Dist. 2009), the court held that the “legitimate business interest” element was no longer required as part of the employer’s proof.  The Illinois Supreme Court, Ehlers reasoned, had never adopted a “legitimate business interest” as part of the test for upholding a covenant not to compete, and there was no policy basis for applying it.  Consequently the employer in Ehlers was found entitled to injunctive relief.   

2.         Under the federal wage and hour laws “postliminary” activity is not “work” as the courts have interpreted the term under the Fair Labor Standards Act.  “Postliminary” activity includes washing up and dressing after the employee has completed his shift.  The issue is whether the activity was directly related to the principal activities of the job, or it was more of a convenience for the employee.  To be compensable, for example, time spent washing up must be integral and indispensible to the job.   In Musch v. Domtar Industries, __F3rd__, 15 WH2d 929 (2009), the Seventh Circuit concluded that showering and changing clothes at a paper mill was not “work” even though the plaintiffs alleged that the workplace exposed workers to hazardous chemicals.

             The maintenance employees who sued were subject to a company policy that required certain actions be taken when an employee was exposed to certain industrial solvents or other chemicals.  The worker was required immediately to remove his clothing and wash the affected area.  All time expended doing this was paid.  There was no evidence that exposure was a daily risk but that it occurred from time to time.  The court reasoned that generally wash-up and dressing time in industry is postliminary, and the policy enforced consistently by Domtar demonstrated that exposure was not to be assumed.  Therfore Musch and his co-plaintiffs recovered nothing from the employer.

 3.         If adverse personnel actions are taken before FMLA is granted and taken, a case for retaliation loses some of its punch.   Long worked for the Teachers’ Retirement System of Illinois as a distribution clerk.  It was her job to process pension requests and move the paperwork so that retirees could start receiving their annuities.  She began taking intermittent FMLA leave on September 26, 2005, and was fired on February 3, 2006.  She sued, alleging that TRS dismissed as a reprisal for her taking of FMLA leave.  She pointed to complaints from her supervisor about the absences, a precipitous drop in her rating for her performance evaluation, and the failure of TRS to follow its own progressive discipline procedure.

             Judge Kendall in the federal district court in Chicago threw out her claim.  Long v. Teachers’ Retirement System of Illinois, __FSupp2d__, 15 WH 705 (N.D. Ill. 2009).  The court found that Long’s performance problems, including excessive absenteeism, had prompted counseling from management in the Summer of 2005.  The court acknowledged criticism from her immediate boss but found that he was not a decisionmaker and that comments he had made about her losing time were also made before she took FMLA leave.  And the court found that the TRS employee handbook’s termination policy contained a reservation of rights under which TRS could begin discipline at any step of the procedure, including the final one.


4.         Rub, an apprentice carpenter, tested positive for marijuana metabolites after he fell into a basement on a construction project.  This accident left him permanently paralyzed, and his claim for workers compensation benefits went from the arbitrator to the Workers Compensation  Commission to the Circuit Court of Cook County, then to the First District Appellate Court.  His employer, Lenny Szarek, Inc., argued that the standards for deciding when marijuana-related accidents are compensable.  The appellate court declined to change the test adopted by the Illinois Supreme Court in Paganelis v. Industrial Commission (1989), and upheld benefits for Rub.

             In Paganelis the court identified two situations in which an employee gets no compensation based on the intoxication defense  1) the intoxication was the cause of the injury, even if in the course of his employment, and  2) excessive intoxication that left the employee outside the course of his employment, i.e., the individual had abandoned employment.

             Szarek wanted the appeals court to hold that if “scientific evidence establishes that the employee was marijuana-impaired at the time of the accident, recovery should be denied altogether.”   Its toxicology expert had testified that Rub was, in effect, stoned, and that he “might or could have mistakenly stepped into the hole (into which he fell) because of an impaired cognitive response.  But the court ruled that a change in this test should come from the legislature.  Lenny Szarek,Inc. v. Workers Compensation Commission, __Ill.App3d__ (1st Dist. 2010)