Kelly A. Cahill

Friday, September 28th, 2018

New Law Strengthens Employment Protections for Service Members

On August 26, 2018, Senate Bill 3547 became law. This public act creates the Service-Member Employment and Reemployment Rights Act (ISERRA) which seeks to clarify and strengthen existing laws designed to protect Illinois service members’ employment rights while they are fulfilling military requirements. The law also gives the Illinois Attorney General’s office the authority to file civil lawsuits to enforce ISERRA and requires her office to create the position of ISERRA Advocate to provide training and information to employers and service members.

Additionally, ISERRA limits the concurrent exercise of power by home rule units with regard to service member employment protections. Among the provisions of ISERRA are several items of particular significance to public sector employers. First, retroactive upgrades will now entitle a service member employee to back pay and other benefits attributable to the interval between discharge and retroactive upgrade. Additionally, during periods of military annual training, public employees shall continue to receive full compensation as a public employee for up to 30 days per calendar year, up from 15, and military leave for purposes of receiving concurrent compensation may be performed non-synchronously. Furthermore, concurrent compensation must be paid for active duty, but not for active duty without pay.

ISERRA also increases the limit for differential compensation for voluntary active military service from 40 days per calendar year to 60 days per calendar year. Furthermore, public employees who have exhausted concurrent compensation under ISERRA in a calendar year can now receive differential compensation for authorized military leave in the same calendar year. ISERRA also removes certain exceptions to provisions concerning additional benefits for public employee members of a reserve component, ensuring that employer-based health plan benefits will continue. Finally, a public employer’s share of the full premium and administrative costs for employer-based health plan benefits shall continue to be paid by the employer for active duty beyond 30 days.

Municipalities employing Active Reserve and National Guard members should ensure they fully understand their obligations and the employment rights these military members enjoy.

Kelly A. Cahill

Authors: Kelly A. Cahill, Matt Marcellis

Thursday, December 7th, 2017

New Sexual Harassment Statute for Governmental Units

On November 16, Public Act 100-554 was signed by Governor Rauner and became effective immediately. Within P.A. 100-554 was an amendment to section 70-5 of the State Officials and Employees Ethics Act. This amendment requires that within 60 days of the passage of the act, each governmental unit adopt an ordinance or resolution establishing a policy to prohibit sexual harassment.

Sexual harassment as defined by the Act means any unwelcome sexual advances or request for sexual favors. The definition of sexual harassment also includes any conduct of a sexual nature which occurs in one of the following circumstances. First, when submission to the conduct is explicitly or implicitly a term of or condition of their employment. Second, when submission or rejection of the conduct is used as a basis for an employment decision affecting that individual. Finally, where the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

At a minimum, the ordinance or resolution establishing a policy prohibiting sexual harassment has to include four things. First, it must include a prohibition on sexual harassment. Second, it must have details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Department of Human Rights. Third, there must be a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Whistleblower Act, and the Illinois Human Rights Act. Fourth, the ordinance or resolution must state the consequences of a violation for the prohibition on sexual harassment as well as the consequences for knowingly making a false report.

To remain in compliance with the law, units of local government must adopt the resolution or ordinance no later than January 15, 2018.

Kelly A. Cahill

Authors: Kelly A. Cahill, Nathan Davidson

Thursday, October 5th, 2017

Illinois Attorney General Releases 11th Public Access Opinion of 2017

The Office of the Attorney General recently released Public Access Opinion 17-011, which looked at whether a 9-1-1 call is beyond the reach of a Freedom of Information Act (FOIA) request.

A radio station sought to obtain two 9-1-1 recordings possessed by the Will County Sheriff’s Office in regard to the death of a 17-month-old child. The radio station filed two FOIA requests for the 9-1-1 calls on April 27, 2017, with the Will County Sheriff’s Office. The Will County Sheriff’s Office denied both requests for two stated reasons. First, the Will County Sheriff’s Office claimed that one recording was exempt from FOIA because it contained private information, in particular biometric identifiers. Second, the Will County Sheriff’s Office argued that the second recording was exempt from FOIA because the disclosure of the recording could impede the active investigation into the death of the child.

In regard to the first argument, the Office of the Attorney General determined that the common understanding of a biometric identifier was the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. Because the 9-1-1 recording did not analyze caller’s voice to determine its identity, there were no biometric identifiers in the recording and therefore it was not exempt from the FOIA.

As to the argument that disclosure of the second recording could impede the active investigation, the Office of the Attorney General noted that the public agency must show a factual basis as to why disclosure would interfere with an ongoing criminal investigation. Finding that the Will County Sheriff’s Office did not provide enough facts to establish how it would interfere with the investigation, the Office of the Attorney General determined that the recording was not exempt from FOIA requirements.

In sum, the Office of the Attorney General found that a voice recording that did not involve an analysis of the voice to determine the speaker does not qualify as containing biometric identifiers and therefore is subject to FOIA requests. The Office of the Attorney General also found that a mere assertion that a disclosure would impede an ongoing criminal investigation, without a sufficient factual basis, is insufficient to exempt a record from FOIA requests.

Kelly A. Cahill

Authors: Kelly A. Cahill, Nathan Davidson

Thursday, July 7th, 2016

Illinois Appellate Court Holds IHSA Not Subject to FOIA

Last month, an Illinois appellate court considered a case involving the Freedom of Information Act (FOIA) and the Illinois High School Association (IHSA). Specifically, the plaintiff submitted written requests seeking all of the IHSA’s contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012 to 2013 and 2013 to 2014 fiscal years. The IHSA, a 501(c)(3) charitable organization, responded to this request by stating that it was not subject to FOIA.

The plaintiff subsequently brought suit against the IHSA, seeking a declaration that the IHSA was a subsidiary “public body” under FOIA and a declaration that the IHSA performs a governmental function on behalf of its member schools. The trial court granted the IHSA’s motion to dismiss.

On appeal, the appellate court looked to three factors in determining whether the IHSA was a subsidiary “public body,” specifically:

  • Whether the IHSA had a legal existence independent of government resolution;
  • The nature of the functions performed by the IHSA;
  • The degree of government control exerted.

As for the first factor, because the IHSA was a 501(c)(3) organization, had its own employees, and owned the building which housed its offices, it was clear that the IHSA had a separate legal existence, independent from its member schools or any other public body. Looking to the second factor, the court determined that just because a public body could perform the functions of the IHSA, the IHSA’s actions were not governmental. Applying the third factor, the appellate court determined that the IHSA was not controlled by a government entity because its Board was comprised of principals from both public and private schools, that IHSA employees were paid by the IHSA, and that the IHSA does not receive government funding.

For these reasons, the appellate court was able to conclude that the IHSA was not a subsidiary “public body.” Therefore, IHSA was not subject to FOIA.

Kelly A. Cahill

Authors: Kelly A. Cahill, Jacob D. Caudill

Thursday, October 1st, 2015

Illinois Appellate Court Holds on Takings and Private Residences

The Illinois Second District Appellate Court recently affirmed a decision allowing a municipality to make repairs on a residential property. At issue, the plaintiff claimed that the City committed an impermissible taking when it installed a traditional shingle roof on the plaintiff’s residence.

Specifically, the plaintiff’s former roof was in a dangerous dilapidated state. For example, the roof was covered by a rubber membrane that risked being blown away, water was able to get in between the roof and the walls, there was improper flashing between the roof and chimney, and even animal tracks had been spotted on it.

Pursuant to a violated consent decree, which required plaintiff to complete necessary construction, the City sought to make the necessary repairs so that it could issue an occupancy permit. The trial court allowed the City to proceed, while cautioning that the permission to repair the roof did not extend to “aesthetic issues.” As such, the plaintiff sought a finding that the City’s installation of a traditional shingle roof, which involved the destruction of individual components of plaintiff’s former roof, was an impermissible taking.

In its finding upholding the City’s action, the court held that “[t]he police power is not limited to the remediation of dangers that imperil the public generally, but extends even to dangers . . . that affect only those directly connected to the property.”

Municipalities should pay special attention to this holding when questioning takings issues and private residences.

Kelly A. Cahill

Authors: Kelly A. Cahill, Jacob Caudill

Thursday, July 2nd, 2015

New Case Highlights Employment Termination and the ADA

Recently, a federal appellate court decided Shell v. Smith, a case involving the Americans with Disabilities Act and the termination of a City employee. The employee, a Mechanic’s Helper who had vision and hearing impairments, had held his position with the City for twelve years. The City terminated the employee after he failed to obtain a commercial driver’s license (CDL), a requirement which the City argued was an essential part of the employee’s position.

In arguing that the CDL was an essential function of the employee’s position, the City relied on the Mechanic’s Helper job description which stated that the employee “may occasionally drive and deliver buses to various field locations,” a function that would require the employee to have a CDL. Relying on this job description, the trial court granted summary judgment for the City.

In reversing the lower court’s holding, the appellate court held that summary judgment was not appropriate because a reasonable jury could have held to the contrary. Specifically, the City could have only required the employee to have a CDL if it was necessary to perform an essential function of the position. In coming to its conclusion, the appellate court based in decision on two reasons. First, that the driving duty in the job description used words like “may” and “occasionally.” Secondly, that the City’s actual practices suggested that the requirement was not fundamental to the job. Particularly, this job description had the same requirement when the employee was first hired and the description had not changed during the twelve years of the employee’s employment. Further, the employee was never required to drive in a manner that would require a CDL in his twelve years of employment.

This case is a reminder that municipalities, as well as other employers, should exhibit caution when terminating employees covered by the ADA for “essential” job functions.

Kelly A. Cahill

Authors: Kelly A. Cahill, Jacob Caudill

Tuesday, November 18th, 2014

Governmental Immunity Takes a Slide

In the recent case of Bowman v. Chicago Park District, the First District Appellate Court reversed a trial court’s grant of summary judgment finding that a thirteen year old was not the intended user of a slide, where an ordinance prohibited children twelve and over from using playgrounds.

Plaintiff brought suit on behalf of her thirteen year old daughter, who fractured her ankle while riding a slide at the park. Witness testimonies indicated that the Chicago Park District (CPD) had known of the defective slide nearly a year before plaintiff’s injury and had done nothing to remedy the defect. Additionally, evidence indicated that there were no signs posted at the park indicating the range of ages allowed to use the playground.

In its motion for summary judgment, CPD argued that it did not owe any duty to plaintiff because the slide was only intended for children under twelve and that the defect was an open and obvious risk. Subsequently, the trial court granted the CPD’s motion for summary judgment based on its determination that the plaintiff was not within the intended class of people to use the slide, and therefore did not address whether the defect was an open and obvious risk.

Specifically, the ordinance in question states that “[n]o person the age of twelve years or older shall use playground equipment designed for persons under the age of twelve years.” Chicago Park District Code ch. 7 § B(3)(e) (amended July 28, 1992). Additionally, the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the Act) establishes that the duty owed is to “people whom the entity intended and permitted to use the property.” 745 ILCS 10/3-102(a). Therefore, it was CPD’s argument that no duty existed because anyone twelve years or older was not “intended or permitted” to use the slide.

However, the First District Appellate Court disagreed. In reversing, the Court held that there was no precedent holding a child to know municipal ordinances, even going so far as to quip “What would prompt a 13-year-old child to observe a slide and think, ‘Am I really the intended user of this slide?’”

Additionally, the Court also found that CPD had failed to inform park users of any age that the playground was intended only for children younger than twelve. Neither the ordinance nor the CPD’s website indicated that this particular park’s playground was only intended for children younger than twelve.

In reversing the trial court’s grant of summary judgment, the First District remanded the case to determine if the defect was an open obvious risk and whether the failure to repair the slide was willful and wanton conduct.

Kelly A. Cahill

Author: Kelly A. Cahill

Tuesday, December 3rd, 2013

Recent Case Law Changes the Landscape for Local Government Owned and Operated Fire Alarm Services

The recent Seventh Circuit decision, ADT Security Services, Inc. v. Lisle-Woodridge Fire Protection District, held that a fire protection district’s mandatory requirement that all commercial and multi-family homes have a direct connection to the fire district’s monitoring system was invalid. This decision impacts any fire district currently requiring direct connection to its alarm monitoring system.  The court held that the fire protection district did not have the statutory authority to own or lease fire alarm equipment for use at private businesses.  Furthermore, the court held that the alarm relaying system did not comport with national requirements and was less efficient than systems available on the open market.  The court also strongly suggested that a mandate to use the district’s equipment raised serious federal antitrust concerns.  In light of that decision, many districts and municipalities served by districts which require a similar connection are seeking alternatives to abide by the Lisle interpretation.

One such alternative being considered is for the fire protection district to enter into an intergovernmental agreement whereby one or more municipalities take over the proprietary ownership and leasing of the monitoring system, which could remain mandatory by way of municipal ordinance for all commercial and multi-family properties.  The question raised is whether municipalities have the authority to require direct connection if fire districts do not.

While there is no case directly on point, an argument can be made that municipalities may own, operate, and mandate such systems, based upon Alarm Detection Systems, Inc. v. Village of Hinsdale and statutory authority.

In Hinsdale, a private alarm company, Alarm Detection Systems, Inc. (ADS) sued the Village of Hinsdale wherein the Village (rather than the fire district) had a similar mandatory, direct connect requirement.   ADS challenged the Village’s statutory authority and claimed state antitrust and state constitutional violations.  The court in Hinsdale found in favor of the Village.  The court emphasized the fact that the direct connect would mean a quicker response time leading to fewer injuries and less property damage and held, “Illinois courts have consistently held that [statutory] grants of authority permit municipalities to regulate both the construction of new buildings and the maintenance of existing buildings in order to protect the lives, health, and property of the public.” Based upon the state’s laws empowering municipalities, the court held “a municipality has the authority . . . to amend the national building or fire codes or draft its own codes as it determines is necessary in order to protect the public safety and welfare. . . [and that] the Village had the authority under the Code to enact [an] ordinance requiring that all fire alarm systems in new and existing commercial buildings be tied directly to the Village’s fire board.”

The Hinsdale court further rejected ADS’s argument that the ordinance violated its due process rights under the Illinois constitution, holding that the Village’s ordinance was rationally related to a legitimate government interest, that of fire safety, based upon the fact that the direct connect would mean a quicker response time leading to fewer injuries and less property damage.  The court also rejected ADS’s argument that the ordinance was an unlawful restraint on trade and an illegal exercise of monopoly power under the Illinois Antitrust Act.  The court found that Section 5(15) of the Illinois Antitrust Act specifically exempts activities of a local government.

The Hinsdale case did not deal with federal antitrust laws, but there is support in state statutes that would seem to protect municipalities from federal antitrust claims. The alarm companies point to a U.S. Supreme Court decision wherein it held that only “state action” as opposed to “local government action” is exempt from antitrust liability.  FTC v. Phoebe Putney Health System, Inc. held that state action immunity will only attach to the activities of local governments if they are “undertaken pursuant to a ‘clearly articulated and affirmatively expressed’ state policy to displace competition.”

The Illinois legislature, in reaction to this “state action doctrine” has addressed the antitrust immunity issue in the Illinois Municipal Code, 65 ILCS 5/1-1-10, which provides specific antitrust protection to municipalities acting either pursuant to general home rule power or pursuant to its constitutionally and statutorily prescribed sources of municipal power.  Thus, while this is a complicated issue with no case directly on point, the Hinsdale case along with Section 1-1-10 seems to provide the authority to require a direct connect alarm system.  However, any community contemplating such a mandatory connection requirement should review all aspects of the system with its legal counsel.

Kelly A. Cahill

Author: Kelly A. Cahill

Tuesday, August 20th, 2013

Deadline to Provide Employees Notice of Health Coverage Options (Oct. 1, 2013)

All local governments, regardless of size, must provide written notice by Oct.1, 2013, to all employees of their option to obtain healthcare coverage through the public exchange (or “Marketplace”), which will be available on Jan. 1, 2014.

The deadline is part of the Affordable Care Act, and while the mandate for large employers (50 or more full-time equivalent employees) to provide “affordable” healthcare coverage has been pushed back to 2015, the individual mandate to have adequate insurance still goes into effect in 2014. As such, employers are required to provide notice of the public exchange option to employees.

The Department of Labor (DOL) has a template notice form available for employers who provide sponsored health coverage, although units of local government may decide to expand on the notice. For example, the individual mandate is not explained in the template notice form, so an employee may not understand that the failure to obtain health insurance would result in the employee paying a penalty.  Another form is available for employers who do not provide a sponsored health plan.

The notice to employees must include the following information:

  • The public healthcare option is available as of 2014.
  • Contact information and a description of the public option. Note that the template form only provides contact information through, so this can seemingly be communicated without providing specific details of Illinois’ healthcare exchange options. In fact, the website instructs individuals that they can compare options only as of Oct.1, so there is a limited amount of information about the public options available at this time.
  • The employee may be eligible for a premium tax credit by using the Marketplace.
  • The employee may lose any employer contribution to an employer sponsored health plan by electing the public option, and that some/all of the employer contribution may be excludable from federal income.

The notice may be provided by first class mail, or it may be provided electronically if it comports with the DOL’s safe harbor provisions, including a statement that the employee’s email address was voluntarily provided for purposes of receiving such communications (see all provisions).

Another wrinkle in the notice requirement is that employers may want to indicate whether their health plans meet the minimum value standard (MVS) set out in the Internal Revenue Code. This is an intricate determination for which the IRS has issued a special notice to improve understanding of the calculation. From a big-picture perspective, a plan will meet the MVS if it covers at least 60 percent of the total allowed health benefit costs. While the MVS information is not technically required as part of the notice to employees, failing to provide this information may result in the local government having to field several inquiries for each employee who applies for coverage through the Marketplace. Part B of the template notice form includes the MVS information for guidance.

Please contact our office for additional information.

Kelly A. Cahill

Author: Kelly A. Cahill

Wednesday, February 13th, 2013

Police Officer’s Class Action for Electronic Overtime

Local governments should review internal policies regarding communications with employees during unscheduled work hours.  A Chicago police sergeant is pursuing a claim to recover overtime pay for time spent on the phone regarding police matters while he was off-duty.  The sergeant was recently given leave to seek other class members, which he alleges could be around 200 other police officers, who were similarly required to take phone calls during non-work hours.

The overriding concern is overtime, because non-exempt employees are subject to overtime pay under the Fair Labor Standards Act for any time worked beyond regular hours.  Trying to quantify the amount of time an employee is connected remotely to work is challenging, because it is difficult to pinpoint how much time a person spends, for example, using a personal phone for work-related communications.

Another variable is determining how much time a person works that is considered “on-call.”  Though the case did not involve a government unit, the court in Pabst v. Oklahoma Gas & Electric Company determined that employees who received a handful of alerts on nights and weekends were on-call and were entitled to compensation, including overtime, for “fifteen hours per weekday and twenty-four hours per Saturday and Sunday,” in addition to their regularly scheduled hours.  The employees received back-pay for the whole period of time they were on-call, which was almost entirely overtime.

The financial concerns extend beyond just back pay/overtime pay, because an employee may be entitled to recover legal costs and other possible damages if successful.  Also, consider that many lawsuits, such as the Chicago sergeant’s present case, involve a group of employees, thereby multiplying the potential liability for employers.

Preventive measures should include deciding which employees should be contacted off-duty, how to communicate with employees who are off-duty, and how employees should document any time devoted to work off-duty.  All employment policies should be reviewed holistically to ensure that the policies are consistent, such as policies covering telecommunications, use of work-provided electronic devices, internal and external communications, time recording, security, and disciplinary proceedings if an employee does not follow the policies.  Courts and arbitrators will typically construe ambiguous policy provisions against the employer should a dispute arise over policies that do not clearly state the same expectation.

All local government units should review their policies to ensure that employees are properly on notice as to how to handle work-related communications while an employee is off-duty.  Even if successful, a government unit will likely spend a great amount of time and money defending itself from an electronic overtime claim.

Kelly A. Cahill

Author: Kelly A. Cahill