When Technology Outpaces the Law – The Illinois Freedom of Information Act and Personal Electronic Devices

Openness and transparency in government is critical to garnering the confidence and support of the general public. From the nation’s highest offices in the White House to the day-to-day operations in a local city hall, the operations of government are continuously under scrutiny.

Enacted on July 1, 1984, the Illinois Freedom of Information Act (“FOIA”), like the federal Freedom of Information Act, was adopted on the premise that “all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees…” and to promote “transparency and accountability of public bodies at all levels of government.”

However, since its inception, technological advances have moved faster than the law has been able to keep up (the law itself acknowledges that “technology may advance at a rate that outpaces its ability to address those advances legislatively”). In recent years, devices such as smart phones have not only made information readily available, but also increased the number of ways in which parties can electronically communicate with one another (i.e. text messaging, e-mailing, and video chatting). However, the law at present only generally references “electronic communications” and makes no distinction between the various methods that one may utilize. Moreover, many entities have implemented “bring your own device” policies, requiring employees to conduct work-related business on their personal devices. As a consequence, determining whether information belongs to the public or private domain has become increasingly more difficult.

This is illustrated by a recent controversy in Chicago, which raises the question whether e-mails, pertaining to public matters but sent from private accounts or personal devices, are “public records” under FOIA. On September 24, 2015, the Chicago Tribune sued the City of Chicago Office of the Mayor and the Mayor for injunctive and declaratory relief for, amongst other things, production of “improperly held records” from “private” accounts. The Chicago Tribune asserted that such information, insofar as it pertains to public business, remains subject to FOIA. The Office of the Mayor disagrees, asserting the fact that such information was not in possession or under the control of the public body.

A similar issue was addressed in City of Champaign v. Madigan, 992 N.E.2d 629 (2013), a case in which members of the city council were found to be sending text messages to one another on their personal electronic devices during a city council meeting. Despite the private nature of the device, the crux of the court’s assessment came down to examining what constitutes the “public body.” In that case, the text messages were found to be “public record” by virtue of the fact that they were sent at a time while the public body was convened. The court, however, acknowledged “notably, section 2(a) [of FOIA] does not include the individual members of those bodies in the definition of ‘public body.’” Citing Quinn v. Stone, 570 N.E.3d 676, 677 (1991), the court further emphasized that “an individual city council member, alone, cannot conduct the business of a public body… [i]nstead, a quorum of city council members is necessary to make a binding decision.”

However, even in the event that the court does take on a FOIA question, the decisions are often narrow in scope. While basic principles can be imputed, public entities have been placed in the precarious position of having to serve as both the gatekeeper and the arbiter of such requests, careful to strike the correct balance between a host of competing interests (an employee’s right to privacy in their personal information with the public’s right to access public information), while simultaneously applying a law that admittedly can’t provide clear guidance to technological advances.

There are steps that public employers can take to help mitigate some of these issues. First and foremost, it is imperative that all public employees understand FOIA and its various implications. Second, public employers should make an ongoing effort to stay abreast of technological advances, create strong internal policies regarding the use of technology, and conduct regular training sessions regarding the same. These policies should encourage means that help segregate information in the public domain from that of the employee as a private individual. Finally, public employers should not hesitate to contact legal counsel if they have any questions, as handling these matters correctly from the beginning can help avoid potential problems down the line.

By: Laura M. Julien

For more information on the Freedom of Information Act, and how it may affect you as an employer or employee, or any other employment law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com.

School’s Out for the Summer: What Employers Should Know About Student Interns and the Fair Labor Standards Act

As summer vacation officially commences, many students opt to pursue internship opportunities. Unfortunately, many employers do not realize the potential implications of taking on student interns. Of particular note is the implications that the Fair Labor Standards Act (“FLSA”) may have on this long-standing practice.

Most employers are well versed on many provisions set forth in the FLSA (such as the 40-hour work week, national minimum wage, guaranteed overtime, child labor protections, etc.). However, its application becomes more nuanced in that many employers are unaware that many of its standards may also apply to individuals it may consider to be “volunteers” or “interns.”

The primary point of inquiry is determining whether a volunteer or intern can be considered an “employee.” Notably, the term “intern” does not appear in the FLSA. While it does establish that one may “volunteer” their services, certain criterion must be met so as to ensure that an employer is not circumventing this provisions under the guise of good-will.

Internships

The FLSA broadly defines employment as “to suffer or permit to work.” The U.S. Department of Labor has clearly articulated a six-factor test for employers to use in assessing whether a volunteer/intern would qualify as an “employee” for purposes of the Act.  While it has opined that this primarily applies to private-sector employers, it is important for public-sector employers to understand as well. That test is set forth below:

  • Whether the internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under the close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the inter; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for time spent in the internship

All of the above factors must be met to preclude the establishment of an employee relationship. In contrast, in the public sector, unpaid interns will generally be permissible so long as there is no expectation of compensation. To that end, public employers such as school districts and municipalities must exercise due caution to ensure that this is clearly communicated to any prospective interns.

Volunteer Activities

Another issue that may come up is whether an individual who is already employed may “volunteer” their time. In short, the employee may not volunteer their time for their employer if the work being performed is the same as that which they would ordinarily be providing. They may, however, volunteer for their current employer to do different type of work, or volunteer for a different public body doing the same type of work.

The Department of Labor has defined “volunteer” in the following manner:

  • An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons;
  • without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours.
  • Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer. “Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.”
  • An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

Volunteers must be addressed slightly differently than internships. While the primary purpose of an internship is educational in nature, volunteer opportunities (or fundraising activities) may also invoke the FLSA. In some instances, a non-for-profit or public entity may work closely with a for-profit entity. By way of example, if an individual was volunteering in the same capacity and performing the same duties as a regular employee of the for-profit organization, it is likely that the FLSA would apply.

By: Laura M. Julien

For more information on the Fair Labor Standards Act, and how it may affect you as an employer or employee, or any other employment law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.combkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

Employment Law Update: June 1, 2015: United States Supreme Court decides EEOC v. Abercrombie & Fitch Stores, Inc.; applies a “motivating factor” rather than “actual knowledge” standard in a Title VII claim with respect to a prospective employee’s need for a religious accommodation

In 2008, Abercrombie and Fitch declined to hire Samantha Elauf, a practicing Muslim, because her black headscarf did not comply with the company’s “Look Policy.”  Elauf wore the headscarf, which she wears for religious reasons, to her interview for a position at an Abercrombie store.  During her interview, the company’s Look Policy was discussed, which prohibits employees from wearing caps or other types of headwear.  However, Elauf’s reason for wearing the headscarf, the applicability of the Look Policy to her headscarf, or the need for an accommodation, were not discussed or mentioned.  Abercrombie admitted that it assumed or suspected that Elauf wore the headscarf for religious reasons, and ultimately, declined to hire Elauf because the fact that she wore a headscarf conflicted with the company’s Look Policy and prohibition against caps and other headwear.

The Equal Employment Opportunity Commission (the “EEOC”) filed suit against Abercrombie on Elauf’s behalf, claiming that the company’s refusal to hire Elauf violated Title VII of the Civil Rights Act of 1964, which, in part, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practices when the practice could be accommodated without undue hardship.  Abercrombie argued in part that there was no Title VII violation because it lacked “actual knowledge” that Elauf required an accommodation since no such accommodation was requested by Elauf.  The EEOC prevailed at the District Court level, but the Tenth Circuit Court of Appeals reversed, and found that an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant or employee provides the employer with actual knowledge of his need for an accommodation.

However, in its June 1, 2015 decision, the United States Supreme Court reversed the decision of the Tenth Circuit, and held that in order to prevail on such a claim under Title VII, an applicant need only show that his need for an accommodation was a “motivating factor” in the employer’s decision, not that the employer had actual knowledge of his need for the accommodation.  In reaching this decision, the Supreme Court specifically found that liability under Title VII for failing to accommodate a religious practice does not include an actual knowledge requirement on the part of the employer.  Thus, rather than imposing an actual knowledge standard, the Supreme Court held that Title VII prohibits certain motives, regardless of the employer’s actual knowledge.  Ultimately, the Supreme Court held that an employer cannot make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

For more information on the provisions of Title VII, and how this decision may affect you as an employer or employee, or any other employment law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

School Law Update: Civil Rights and the Measles- the United States Department of Education through the Office for Civil Rights releases a fact sheet offering guidance on how schools can be mindful of civil rights requirements and ensure that students who are medically unable to receive vaccines due to a disability are not discriminated against on the basis of disability

On March 18, 2015, the United States Department of Education through the Office for Civil Rights (“OCR”) released a fact sheet reminding schools to be mindful of civil rights requirements when dealing with and responding to the recent measles threat.  OCR recommends that schools use the Centers for Disease Control and Prevention’s recommendations and resources when considering how to best prevent the spread of measles.  OCR advises that in general, schools can require that students be vaccinated to attend school in order to minimize the risk of exposure to other students.  In the case of an outbreak, schools should defer to the public health authorities to assess whether individuals should be advised or required to stay home from school, either because they may have a contagious disease, or because they are not immunized.

However, some students may be medically unable to receive certain vaccines because of a disability, including those disabilities that affect the immune system, such as HIV/AIDS, leukemia, or other cancers.  In this regard, some state laws generally contain medical exemptions to vaccine requirements.  Under normal circumstances, schools must make reasonable modifications to policies, practices, or procedures that otherwise require vaccinations, in order for these students to be able to attend school.  OCR advises that during an outbreak or potential outbreak of a vaccine-preventable disease, such as the measles, schools must follow existing laws and policies in a non-discriminatory manner and should seek guidance from and defer to public health authorities when determining whether, for students with disabilities, the school can continue to safely make such modifications to a policy, practice, or procedure that otherwise requires vaccinations in order to attend school.

For more information on civil rights implications involved in a school’s treatment of a potential measles outbreak, or other school law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

 

Criminal Background Checks for Public Sector Employers – Part I

What Public Employers Should Know About the “Ban-the-Box” Movement

Debates surrounding criminal background checks have reemerged as the state has recently passed legislation prohibiting private employers from inquiring as to one’s criminal history during the preliminary stages in the hiring process. While the recent legislation is limited to the private sector, this “ban-the-box” movement has gained momentum throughout the country, with a primary objective of ensuring that candidates are being reviewed for their aptitude prior to addressing any background concerns. Although not required, in 2013 the state also adopted this practice. Consequently, it is important for public sector employers to be aware of the general climate and recent trends pertaining to criminal background checks so as to promote fair hiring practices.

By way of summary, the phrase “ban-the-box” refers to the question on employment applications asking applicants “have you ever been convicted of a crime” and providing candidates with the option of checking a “yes” or “no” box. While Illinois law currently prohibits employers from considering an individual’s arrest record, in practice this question often leads to applicants being discriminated against. The risk is that if an applicant checks “yes,” it will be used as a preliminary screening measure and will disqualify an applicant prior to conducting any further inquiry.

The problems posed by such a question is two-fold. First, in many instances, those in charge of the background check procedure may not be well-versed in the nuances of criminal law. While an employer may consider conviction information, dispositions such as “nolle pros,” “stricken off – leave to reinstate,” and “guilty with court supervision” are often mistakenly treated as convictions and used as disqualifiers.

Secondly, such a practice, without relying on independent fingerprinting information, places employers in a position in which they are basing an employment decision solely based on the information provided by the applicant. Again, because this area of law is especially nuanced, this self-reporting is often inaccurate. Individuals will mistakenly believe that “probation” kept an offense off of their record, while others will assume that they are required to disclose any arrest (or will do so to err on the side of caution). This may lead to inadvertent inaccurate reporting and/or falsification of an employment application.

To alleviate these concerns, the state legislature has required that private sector employers engage in the background check process only after an offer of employment has been extended. Accordingly, public sector employers should be cognizant of these legal trends and create a screening process that is narrowly tailored and set up in a way so as to minimize these potential pitfalls.

In the upcoming weeks, we will explore some of these background check issues in greater detail, so please be sure to check back!

By: Laura M. Julien

For more information regarding criminal background check requirements for public employers, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

School Law Update: United States Department of Education and United States Department of Justice file “Statement of Interest” in pending transgender discrimination case, supporting transgender student’s Title IX/Equal Protection Clause Claims

Recently the U.S. Department of Education and U.S. Department of Justice (“the Departments”) filed a “Statement of Interest” in a federal transgender discrimination lawsuit pending in the U.S. District Court for the Eastern District of Michigan, Tooley v. Van Buren Public Schools, case no. 2:14-cv-13466-AC-DRG (E.D. Mich.) The complaint alleges that the plaintiff, who was a female at birth, but whose gender identity is male, was discriminated against by the school district.  The allegations of transgender discrimination against the school include that the student was prohibited from using the bathroom of the gender in which the student identified, and was bullied by his peers due to his gender identity.  The Departments ask the Court to “hold that the prohibition of sex discrimination under Title IX and the Equal Protection Clause encompasses discrimination on the basis of transgender status, gender identity, and sex stereotyping” and to deny the school’s motion to dismiss the plaintiff’s claims on those grounds.

For more information regarding transgender issues in schools, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

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