Welcome to Decoding Appeals, where Seyfarth’s Appellate Team brings you insights and expertise from the front lines of the courtroom. Throughout this short video series, we break down the nuances of appellate advocacy, sharing tips and lessons we’ve learned to help you navigate the complexities of the appeals process.

Back by popular demand, host Owen Wolfe is joined by Amanda Williams and Cat Johns, two former judicial law clerks, for another insightful discussion. This episode delves into the unique advantages law clerks bring to private practice, the critical role of oral arguments in appeals—including strategies for preparing for a hot or cold bench—and the art of drafting effective briefs. The speakers also examine how understanding the interplay between different court levels can influence case outcomes. Tune in for an engaging conversation that offers fresh perspectives on the appeals process and the value former clerks bring to the table.

The landscape of transgender employment laws is evolving globally, with various jurisdictions adopting laws that ensure inclusivity and non-discrimination in the workplace. This area is one of the most complex issues in employment law systems and has generated much controversy. Notwithstanding this, many global companies seek to support and promote the interests of women regardless of their gender identity or expression. This commitment aligns with the broader international trend of recognizing the rights of transgender individuals in the workplace. Transgender rights have been part of broader DEI initiatives for some time and are protected by law in some countries. There is an emerging body of law considering how these transgender legal protections interact with existing legal protections based on sex or gender. 

In this article we consider, in the international context, a recent decision of the Federal Court of Australia that has been noticed around the world. We have focused on selective jurisdictions for the purposes of comparison, but this issue is much wider than the limited number of countries referred to in this article.

The Australian Case

In Australia, the recent decision of Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 looked at the removal of a transgender woman (Ms. Tickle) from a female-only networking and dating app known as Giggle because, on a visual inspection, someone responsible for administration of the app had determined that she was a man (and therefore ineligible to participate). 

Ms. Tickle is a transgender woman whose female sex is recognized by an official updated Queensland birth certificate. 

The respondents’ conduct was found to be unlawful gender identity discrimination in the provision of goods and services, on the basis that: 

  • the app was imposing a requirement that users appeared to be (cisgendered) women, based on an examination of their profile photo 
  • while this requirement applied equally to everyone, it had the effect of disadvantaging transgender women, and 
  •  in the circumstances, the requirement was not reasonable. 

The respondents argued that Ms. Tickle was believed to be a male, meaning there was no discrimination because of gender identity, and that Ms. Tickle was denied access to the app based on her sex at birth, which they considered to be male. They also argued that the Giggle app should be considered as a ‘special measure’ to achieve substantive equality between men and women.

The Court rejected these arguments:

  • confirming prior cases that had found that a person’s sex is changeable and “sex can refer to a person being male, female, or another non-binary status” 
  • determining that the respondents had engaged in conduct in breach of the clear Parliamentary intent to prohibit discrimination on the ground of gender identity in the provision of goods and services
  • commenting that “It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination.” 

The respondents were ordered to pay $10,000 AUD plus Ms. Tickle’s legal costs. Their evidence in the case was that they had also made the decision to close down the Giggle app.

Australia

Under the Sex Discrimination Act 1984, gender identity has been a legally protected ground since 2013. However, the Australian Human Rights Commission has described this as the first case of its kind to go before the court. 

This case highlights the need to be cautious in Australia before implementing any measures intended to advance the interests of a group based on sex or gender, if such measures exclude persons with different gender identities. Unless the measure (and discriminatory impact) can be shown to be reasonable or come within a ‘special measures’ exemption to remedy certain types of existing sex-based inequalities, then there is a real risk this would be unlawful.

United States 

In the United States, the legal position on transgender protection is more nuanced. National (Federal) law bars discrimination based on sex under the Civil Rights Act of 1964. The United States Supreme Court has determined that this prohibition in extant law precludes drawing a distinction between cisgender and transgender individuals in the employment context. However, Courts continue to grapple with how this ruling applies to similarly worded prohibitions in education and public accommodation law, as well as to analyze its meaning under the United States Constitution. The Supreme Court’s reasoning in the employment context hinges on the rationale that treating a transgender female differently from a cisgender female is discriminatory sex stereotyping. However, in the employment context there remain many unanswered legal questions in the United States, including balancing the interests of religiously motivated private employers and employees with the interests of transgender and non-binary individuals. The Courts in the United States have not (at this stage) adopted the Australian position that measures to advance a group based on sex or gender cannot exclude persons with different gender identities.

United Kingdom

In the United Kingdom, the legal meaning of ‘sex’ is unclear due to a conflict between the definitions of ‘sex’ under two pieces of legislation: the Equality Act (“EA”) 2010 (the UK’s anti-discrimination legislation) and the Gender Recognition Act (“GRA”) 2004 (the UK’s gender change legislation). Under the GRA, if a person has a gender recognition certificate (“GRC”), the affirmed gender in that certificate is their gender for all purposes and is their ‘legal’ sex; whilst under the EA ‘sex’ (which is a characteristic that is protected from discrimination) is not clearly defined (i.e., it is ‘a reference to a man or a woman’). 

This conflict has resulted in particularly prominent legal challenges in Scotland as to whether ‘sex’ for the purposes of the EA means biological sex or recognizes the legal sex of people with a GRC. This conflict will take the national stage in November 2024 when the UK’s Supreme Court hears For Women Scotland’s appeal of a judicial review decision on the legal definition of the word ‘woman’ (this litigation was first lodged in the context of the Scottish government’s definition of ‘woman’ in 2018 legislation on gender representation on public boards). The UK Supreme Court’s decision should provide clarity on the extent to which sex under the EA is defined as biological or legal. 

Both pieces of legislation have also become the subject of increased political polarization. In April 2023, the UK’s Equality and Human Rights Commission recommended to the Minister for Women and Equalities that the government carefully consider redefining sex in the EA as biological sex; it said that this would bring greater legal clarity in eight areas (including single sex and separate sex spaces), but acknowledged that doing so would create ambiguity and potential disadvantage in three other areas.

In June 2024 (before its defeat in the General Election), the Conservative Party pledged to re-write the EA so that it defined ‘sex’ as biological sex, but a Labour frontbench MP said that guidance (rather than amending the EA) would be sufficient for clarifying the uncertainty here. In 2023, the UK’s Conservative government also rather controversially blocked the Scottish parliament from enacting legislation that would have made the Scottish process for obtaining a GRC easier. Conversely, the Labour Party’s 2024 election manifesto pledged to make it procedurally easier for transgender people to legally change their identity. We must wait to see how the Labour Party’s election to government in July 2024 impacts the ongoing discourse on this matter. 

From an employment perspective, UK employment tribunals have found that holding gender critical beliefs (i.e., the belief that sex is immutable and biological) can be a protected philosophical belief capable of protection from discrimination under the EA. However, the manifestation of such beliefs in behavior might not be protected depending on what those behaviors are and how they impact on the legal rights of others not to be discriminated against on the basis of their sex or gender reassignment.

Hong Kong

Legal developments around gender identity in Hong Kong have largely been premised on constitutional rights enshrined in the Basic Law (for example, the right to marry and the right to privacy), rather than any express prohibition of gender identity discrimination. Gender identity is not a protected characteristic under Hong Kong’s anti-discrimination legislative framework, which has only four ordinances covering sex, disability, race, and family status. 

The progression of gender identity rights in Hong Kong has been gradual and piecemeal, with limited case law to rely on. In 2013, a Court of Final Appeal case ruled that the interpretation of the Marriage Ordinance, which treats a transgender female (having undergone full sex reassignment surgery) as a “man,” was a violation of her constitutional right to marry by preventing her from marrying under her acquired gender. Following this, in 2017, the Hong Kong government set up an Inter-departmental Working Group on Gender Recognition to consider making legislative changes to reform transgender rights in Hong Kong. However, there has been little progress on this, which may be because gender identity remains a very divisive topic in Hong Kong. In February last year came a significant development in gender identity rights when the Court of Final Appeal ruled that the policy of barring transgender people from changing their gender markers shown on ID cards unless they underwent full sex reassignment surgery was unconstitutional because it violates the right to privacy. These judicial review decisions, while having no direct impact on the private sector, may have some indirect influence on how employers in Hong Kong, especially international employers, engage with, and treat transgender people.

Italy

In Italy, transgender persons have several legal protections and rights. Since 1982, transgender people in Italy have been allowed to change their legal gender. This process involves both medical and legal procedures. 

Additionally, discrimination based on gender identity in employment has been prohibited in Italy since 2003. This means that employers cannot legally discriminate against transgender individuals in hiring, promotion, or any other aspect of employment. 

Discrimination based on gender identity is prohibited in various contexts, including employment and public advertisement. The Italian Constitutional Court has ruled that non-binary individuals’ rights are also protected under the principles of social identity, equality, and the right to health as guaranteed by the Italian Constitution. 

Whilst these legal protections are significant, Italy still faces challenges in achieving full equality for transgender individuals, particularly in areas like healthcare access and social acceptance. Many transgender individuals in Italy still face challenges in the workplace. Surveys have shown that a significant number of LGBTQ+ workers, including transgender individuals, feel that their careers have been negatively impacted by discrimination.

Conclusion

The traditional legal approach of balancing competing interests creates particular difficulties when dealing with issues like the dignity of people or fundamental philosophical beliefs. Courts in every country are going to have to decide what of these interests are the most important.

By: Erin Dougherty Foley, Sara Eber Fowler, Taylor Iaculla, Ridhima Bhalla, and Hannah Sosenko

Seyfarth Synopsis: On January 1, 2025, employers in Illinois must be poised to comply with the looming changes to a host of existing and newly enacted employment laws. The changes reflect the state’s ongoing expansion of workers’ rights and addressing issues of employment discrimination, harassment, retaliation, and freedom of speech.

Illinois Human Rights Act Amendments

Period to File Complaints: On January 1, 2025, several amendments to the Illinois Human Rights Act (“IHRA”) will go into effect. Notably, the amendments more than double the time period for filing a charge of discrimination, harassment, or retaliation. Complainants will now have 2 years from the date of the alleged violation – instead of the current 300 days – to file complaints with the Illinois Department of Human Rights.

Expanded Protected Classes: The amendments also add new protected classes to the IHRA.

Family Responsibilities: Under the amended Act, employers are prohibited from discriminating against an employee, or prospective employee, based upon the employee’s “family responsibilities.” Family responsibilities include an employee’s actual or perceived responsibilities to provide personal care to a family member. Personal care includes:

  • activities related to meeting a covered family member’s basic medical, hygiene, nutritional, or safety needs are met;
  • providing transportation to a family member who is unable to meet such needs;
  • time spent providing emotional support to a covered family member with a serious health condition who is receiving inpatient or home care.

Reproductive Health Decisions: Similarly, the IHRA will prohibit discrimination on the basis of “reproductive health decisions.” In doing so, Illinois joins several other jurisdictions that prohibit discrimination on this basis. Reproductive health decisions include a person’s decisions regarding contraception, fertility care, assisted reproductive technologies, miscarriage management care, healthcare related to the continuation and or termination of pregnancy, and any pre-, intra-, or postnatal care.

Illinois Equal Pay Act Amendments

The Illinois Equal Pay Act will require that employers with 15 or more employees disclose “pay scale and benefits” in all job postings. The mandatory disclosures must include the wage or salary (or the wage or salary range), along with a general description of benefits and other forms of compensation, such as bonuses, stock options, and other incentives the employer plans to offer for the position. These pay disclosure requirements apply only to jobs that:

  • will be performed, at least partially, in Illinois; or
  • will be performed outside of Illinois if the hired employee will report to a supervisor, office, or other work site located in Illinois.

Another critical aspect is the emphasis on transparency regarding internal promotional opportunities. Employers are required to announce, post, or otherwise make known all opportunities for promotion to current employees no later than 14 calendar days after making an external job posting for the same position. Employers must also maintain records of job postings, pay scales, benefits, and wages for each position for at least five years. (Seyfarth’s prior update on these changes is available here.)

Worker Freedom of Speech Act

Reflective of the increased efforts limiting employers’ ability to conduct “captive audience” meetings, the Worker Freedom of Speech Act will prohibit employers from threatening to take or taking any adverse employment actions against employees for the following reasons:

  • declining to participate or attend an employer-sponsored meeting if the meeting is to communicate about religious or political matters;
  • as a means of inducing an employee to attend or participate in a meeting about religious or political matters; and
  • making a good faith report of a violation or suspected violation of the Act.

Among other topics, “political matters” includes the decision to join or support a labor organization.

If an employer violates the Act, the aggrieved employee has one year after the date of the alleged violation to bring a civil action. A prevailing employee may be awarded injunctive relief, reinstatement, back pay, reinstated benefits, including seniority, reasonable attorney’s fees, and costs. The Illinois Department of Labor may also investigate alleged violations, and may recover up to $1,000 for each violation per affected employee.

Whistleblower Act Amendments

Amendments to the Whistleblower Act alter the definitions of several key statutory terms, including “adverse employment action,” which will include actions that “a reasonable employee would find materially adverse.” An action is materially adverse when it “could dissuade a reasonable worker from disclosing or threatening to disclose” certain information, including information concerning their employer’s activity, policy, or practice the employee believes violates or poses a “substantial and specific danger to employees, public health, or safety.”

It likewise includes and broadly defines “retaliatory actions” that employers are prohibited from engaging in. For instance, unlawful retaliation includes:

  • taking action against employees who disclose or threaten to disclose information to any supervisor, principal officer, board member, or supervisor in an organization;
  • contacting, threatening to contact, or otherwise reporting/threatening to report an employee’s suspected or actual citizenship or immigration status; or
  • intentionally interfering with a former employee’s employment.

The amendments also include stricter penalties, providing aggrieved individuals with a private right of action in which they could recover up to $10,000 in liquidated damages as well as a $10,000 penalty, in addition to fees and costs. Likewise, the Attorney General is empowered to seek remedies under the Act and may request a civil penalty of up to $10,000 for each repeat violation within a 5-year period.

Overall, the amendments expand employees’ statutory protections under the Act due to the broadly defined statutory language. However, the Act now expressly provides an additional defense for employers to defeat claims provided that the alleged retaliatory action was based solely on grounds other than the employee’s statutorily protected conduct.

Child Labor Law of 2024

The Child Labor Law of 2024 repealed the previous Illinois child labor law and covers minors under the age of 16. The law specifies the allowable work hours and times for minors, such as not working more than 18 hours while school is in session (down from 24 hours) or not working more than 40 when school is out of session, but also provides certain exceptions. The law further clarifies that civil and criminal penalties can be imposed for violations and requires employers to obtain and maintain on the premises an employment certificate authorizing a minor’s work. Other notable aspects of the new law include:

  • ensuring all minors are supervised by an adult 21 years or older while the minors are working;
  • minors 13 years of age or younger cannot work in any occupation at any workplace unless they satisfy an exemption under the Act;
  • an expansion of prohibited occupations for minors to work in, such as in any cannabis shops, barber, cosmetology, esthetics, hair braiding, and nail technology services requiring a license, or any other occupation determined by the Director to be hazardous.

Personnel Records Review Act Amendment

The recent amendment impose new obligations on employers, including the method for requesting personnel records and the intervals in which requests may be made.

Request Requirements:  Requests need to be made to a person responsible for maintaining the employer’s personnel records and must identify the records an employee is requesting. The employee must specify whether they are requesting to inspect, copy, or receive copies of the records; if they elect to request copies, they must specify whether they want electronic or hard copy formats.

What Can Be Requested: The Amendment expands the types of records an employee may request. This now includes:

  • any employment-related contracts or agreements that the employer maintains are legally binding on the employee;
  • any personnel documents used to determine an employee’s qualifications for benefits and compensation;
  • any employee handbooks that the employer made available to the employee or that the employee acknowledged receiving;
  • any written employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, discharge, or other disciplinary action.

Additional Exception: The Amendment adds an exception to personnel records that must be disclosed, clarifying that the right to inspection does not apply to an “employer’s trade secrets, client lists, sales projections, and financial data.”

Wage Payment and Collection Act Amendment

Amendments to the Wage Payment and Collection Act change employers’ recordkeeping obligations. Employers will soon be required to retain copies of pay stubs for a minimum of three years after the date of payment, regardless of whether an employee’s employment ends during that period. Employers will also need to provide current or former employees with copies of their pay stubs within 21 days of a request. However, employers will not be required to approve more than two requests in a calendar year.

The amendments clarify the meaning of a “pay stub” under the Act, which includes “an itemized statement or statements reflecting an employee’s hours worked, rate of pay, overtime pay and overtime hours worked, gross wages earned, deductions made from the employee’s wages, and the total of wages and deductions year to date.”

For employers who provide electronic pay stubs that employees cannot access for a year following their separation, they must offer to provide, upon an employee’s separation of employment, a record of all pay stubs for the past year. Notably, employers must document this offer in writing, noting (1)the date the offer was made; and (2) the employee’s response.

Employers who fail to furnish a paystub or otherwise comply with these amendments will be subject to a civil penalty of up to $500 per violation.

Right to Privacy in the Workplace Amendments

As we recently reported, Illinois’s amended Right to Privacy in the Workplace Act reaffirms that Illinois employers may voluntarily use E-Verify systems, provided that the employer follows the requirements outlined in the Act. There is no ban or restriction against the voluntary use of E-Verify in Illinois, though the amendments prohibit an employer from imposing work authorization verifications (or re-verifications) beyond existing federal requirements. Moreover, the amendments impose additional obligations upon employers in an effort to enhance worker protections.

Notice Requirements:

  • Inspections: Come January 1, 2025, employers must inform employees if their Form I-9 documentation will be inspected. Specifically, employees must be notified of any inspection within 72 hours of receipt, and where appropriate, employee representatives should also be notified.
  • Discrepancies Known to Employers: When an employer receives notification from a federal or state agency of a discrepancy as it relates to work authorization, employers must provide written notice of the issue to the employee. Notice should be given via hand-delivery if possible, or alternatively by mail and email within five business days. The notice must include:
    1. an explanation of the determination;
    2. the time period for the employee to notify the employer if they wish to contest the determination;
    3. the time and date of any meeting with the employer or with the inspecting entity; and
    4. notice that the employee has the right to representation.
    • Discrepancies Made by Inspecting Entities: Employers must also notify employees of discrepancies or suspect document determinations made by inspecting entities, such as Homeland Security Investigations. Once the inspection is completed, employees should have an opportunity to resolve any verification discrepancies. Employers must notify the employee within 5 business days (or sooner if federal law or a collective bargaining agreement requires). The notification must be  hand delivered. If hand delivery is not possible then notice must be sent by mail and email.

    The Health Care Worker Background Check Act Amendments

    Comprehensive Community Mental Health Centers certified by the Department of Human Services (“DHS”) will now be subject to the Act’s requirements. Among other requirements, such employers must now terminate their employees if they are found to have:

    • A disqualifying criminal conviction unless a waiver has been granted by the Illinois Department of Public Health;
    • substantiated findings of physical or sexual abuse, neglect or financial exploitation;
    • indicated findings of abuse or neglect reported by the DCFS Central Register/Child Abuse and Neglect Tracking System (CANTS) unless there is a waiver granted by DHS; or
    • their name is listed on the Healthcare and Family Services (“HFS”) Office of the Inspector General Sanction List as not authorized for employment unless their employment is approved by HFS.

    Non-Competes and Non-Solicitation Provisions

    On August 9, 2024, Illinois declared non-compete and non-solicitation provisions entered into after January 1, 2025, as unenforceable if the provision is “likely to result in an increase in cost or difficulty for any veteran or first responder seeking mental health services.”

    It also deemed all non-compete and non-solicitation provisions as “void and illegal” for any person employed in construction, regardless of the terms of any applicable collective bargaining agreement.

    Changes to Armed Forces and Uniform Services Definition

    Illinois expanded the definition of armed forces or uniformed services to specifically include members of the United States Space Force.

    Next Steps for Employers: Employers should review existing applicable policies (including retention protocols) to ensure compliance with these Illinois updates, and train relevant HR, business, and management personnel on these new requirements as we head into 2025.

    By: Daniel I. Small, Howard M. Wexler, and Robert S. Whitman

    The most wonderful time of the year often portends many legal hiccups for the unassuming business.  And this year is no different.  As the holiday season approaches and we turn the calendar to 2025, New York employers should pay attention to several legal and regulatory changes taking effect in 2025 and beyond.

    Wage & Hour Changes

    As has become an annual tradition, New York employers should keep in mind the scheduled minimum wage increases set to go into effect on January 1, 2025 (and beyond). 

    Minimum Wage Increases

    As outlined here, New York’s Governor Hochul signed legislation adopting a three-year period of annual increases to the state’s minimum wage rates, followed by a market-based approach to adjust minimum wage rates moving forward. 

    Effective January 1, 2025, all New York employers will face the following rate increases:

    Effective DateNew York City, Long Island, and WestchesterRemainder of New York State
    January 1, 2025                      $16.50$15.50
    January 1, 2026                      $17.00$16.00

    As of January 1, 2027, subsequent minimum wage increases will be tied to the three-year average of a regional consumer price index, such that economic conditions could prevent a rate increase for a particular year.  The New York Department of Labor (“NYDOL”) is tasked with monitoring the statewide economy and adjusting the minimum wage accordingly.  If the NYDOL determines a rate increase is appropriate, it will need to post the adjusted rate no later than October 1 of the year prior to the planned increase to give employers sufficient time to prepare.

    Overtime Exemption Salary Threshold Increases

    Per NYCRR § 142-2.14, employees who work in an executive or administrative capacity and who are paid a salary not less than the thresholds set by state regulations may be exempt from the state’s overtime pay requirements.    

    As discussed here, beginning January 1, 2025, the following salary thresholds for the “executive” and “administrative” exemptions will take effect:

    Effective DateNew York City, Long Island, and WestchesterRemainder of New York State
    January 1, 2025                      $1,237.50/week($64,350.00/year)$1,161.65/week($60,405.80/year)
    January 1, 2026                      $1,275.00/week($66,300.00/year)$1,199.10/week($62,353.20/year)

    As a reminder, New York does not have a higher salary threshold than federal law with respect to an “employee employed in a bona fide professional capacity.”  As such, the professional exemption under New York law will continue to be subject to the federal professional exemption salary threshold, currently set at $684.00 per week ($35,568.00 per year) after a federal judge recently rejected the Biden Administration’s attempt to increase that threshold (see here).

    New York’s Paid Prenatal Leave Law

    Earlier this year, New York State passed a first-in-the-nation paid prenatal leave for covered employees effective January 1, 2025. The State has just issued administrative guidance to help employers navigate the new requirements.

    As outlined here and here, the paid prenatal personal leave (“PPPL”) entitlement program requires all employers to provide at least 20 hours of paid prenatal personal leave each year in addition to the existing statutory paid sick leave under the New York State Paid Sick Leave Law.  This means that eligible employees will soon be entitled to use up to a total of either 60 hours or 76 hours (depending on employer size) of paid leave for various medical needs.

    Eligible employees may use PPPL in hourly increments to receive health care services during their pregnancy or related to a pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to pregnancy.  The guidance underscores that PPPL can be used only by the pregnant employee and not by a pregnant individual’s spouse, partner, or other support person. 

    The guidance further clarifies that: (i) the 20-hour entitlement is not accrued, but rather frontloaded each year on January 1, or upon the employee’s date of hire, whichever is later; (ii) there is no waiting period to use PPPL, meaning eligible new hires can use PPPL for a covered absence immediately without satisfying a minimum amount of time worked before accessing the PPPL; and (iii) PPPL is a separate benefit from other leave policies and laws, and that the 20 hours of PPPL are in addition to any other available leave options.

    Sunset of COVID Paid Sick Leave

    New York was one of the first states to adopt paid sick leave specific for COVID-19 purposes. (See here and here for our prior alerts on the topic.)  The New York State COVID-19 Emergency Leave Law currently provides employees with paid leave when subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. The amount of paid time off to which employees are entitled under this mandate has changed over time in light of the CDC ending its recommended five-day isolation period following a positive COVID-19 test. 

    However, as expected, this this leave entitlement will end effective July 31, 2025.  However, employees may continue to use other qualifying paid leave, such as New York Paid Sick Leave, for COVID-19-related reasons.

    Retail Workplace Safety Law

    As outlined here, Governor Hochul in September 2024 signed legislation mandating the establishment of a workplace violence prevention policy, notice and training program, and the installation of panic buttons in the workplace for certain retail employers. 

    But these components do not all share the same effective date and some coverage details differ as well.  For example, while the written policy, notice, and training requirements will all take effect on March 4, 2025, the panic button requirement does not take effect until January 1, 2027.  And whereas the policy, notice, and training requirements apply to all employers employing 10 retail employees as defined under the statute, the panic button requirement is applicable only to employers with 500 retail employees nationwide. 

    As of today, the NYDOL has still not published any further guidance at this time leaving some employers in the dark regarding the scope of coverage, particularly the intended meaning of the terms “sells consumer commodities at retail” and “primarily” in the statutory definition of “retail store.”  We nonetheless expect the NYDOL to issue guidance prior to the March 4, 2025 effective date for some of these requirements.

     Outlook

    Employers operating in New York should remain attentive to the changing legal landscape as we begin a new calendar year. New York employers should consider reviewing their policies and procedures for potential necessary changes to ensure compliance.  

    For additional information and guidance, we invite you to join us at our upcoming Breakfast Briefing, “New York and New Jersey Employment Law: 2024 in Review and What’s to Come in 2025,” on January 9, 2025. You can view the program details and register here.

    Tuesday, December 17, 2024
    1:00 p.m. to 2:00 p.m. Eastern
    12:00 p.m. to 1:00 p.m. Central
    11:00 a.m. to 12:00 p.m. Mountain
    10:00 a.m. to 11:00 a.m. Pacific

    Register Here

    About the Program

    Join us for the final installment of Seyfarth’s 2024 Trade Secrets Webinar Series, where our panel will provide practical guidance on navigating non-compete agreements, safeguarding trade secrets, and understanding critical regulatory developments impacting employers across the United States. This session will highlight key updates from the upcoming release of our 2024-2025 Edition of Seyfarth’s 50-State Non-Compete Desktop Reference—your go-to resource for understanding non-compete laws nationwide.

    With significant federal and state changes, including updates from the FTC, NLRB, and new wage threshold requirements, this webinar is essential for employers looking to remain compliant, mitigate risks, and protect their business-critical assets. What to expect:

    • Federal Updates: What employers need to know about changes under the Trump administration, including potential impacts on non-compete enforcement.
    • Regional Trends: A comprehensive review of state-level developments in non-compete laws.
    • Regulatory Outlook: Insights into the Federal Trade Commission (FTC) and National Labor Relations Board (NLRB) regulatory landscapes and what to anticipate in 2025.
    • Wage Threshold Notices: Understanding the implications of wage threshold requirements on non-compete agreements.
    • Protecting Your Company with Non-Competes: Best Practices for Safeguarding Valuable Assets Amid Heightened Scrutiny
    • Interactive Q&A Session: Engage with our panel and get your pressing questions answered.

    Exciting news! Our highly anticipated 50-State Non-Compete Desktop Reference is launching soon. Stay ahead with this essential resource—subscribe to our Trade Secrets mailing list today to ensure you’re among the first to receive it!

    Speakers

    Kate Perrelli, Partner, Seyfarth Shaw LLP
    Justin Beyer, Partner, Seyfarth Shaw LLP
    Jesse Coleman, Partner, Seyfarth Shaw LLP
    Joshua Salinas, Partner, Seyfarth Shaw LLP

    Register Here

    If you have any questions, please contact Sadie Jay at sjay@seyfarth.com and reference this event.

    Seyfarth Synopsis: While motions for summary judgment are usually tricky to obtain in fact-laden employment cases alleging discrimination, failure to accommodate, and failure to engage in the interactive process, the Court of Appeal recently handed the employer a complete victory when it affirmed summary judgment on all causes of action on just such a case, providing a reminder on the essentials of such claims, as well as a roadmap for employers on achieving dispositive motion victories in such cases.

    In Miller v. California Dept. of Corrections and Rehabilitation, 105 Cal. App. 5th 261 (2024), a California Department of Corrections and Rehabilitation (“CDCR”) correctional officer who had been placed on an unpaid leave of absence filed suit against the CDCR alleging disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and retaliation. The trial court granted CDCR’s motion for summary judgment, and the correctional officer appealed. The Court of Appeal, Fourth District, independently reviewed summary adjudication of each cause of action de novo, and affirmed.

    Back to the Essentials on Disability Discrimination

    The Court found that CDCR had met its initial burden on summary judgment on the disability discrimination claim by showing that plaintiff’s permanent restrictions were incompatible with her essential duties, and that CDCR was not prohibited from taking adverse employment action against the correctional officer since she could not perform her essential duties. This is because disability cases focus on whether the employee is able to perform their essential functions. Gov. Code Section 12940(a) specifically “exclude[es] from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential duties.” Green v. State of CA, 42 Cal. 4th 254, 262 (2007). In this case, the employer’s motives for any alleged adverse employment action becomes subject to scrutiny only after the employee meets this burden to show the ability to perform the essential functions of the job, with or without reasonable accommodation. As the correctional officer failed to do so, the employer’s motivations were never subject to scrutiny.

    Specifically, the correctional officer failed to present any evidence to dispute the essential duties of a correctional officer or to suggest that her restrictions would permit her to perform her essential duties. Instead, she attempted to confuse the issues by directing the Court’s attention to evidence related to CDCR’s purported failure to engage in the interactive process and failure to provide her with a reasonable accommodation. However, the Court was not fooled, holding that the refusal to participate in the interactive process or refusal to provide a reasonable accommodation “do not constitute ‘adverse employment actions’ in the context of a claim of discrimination.” Brown v. Los Angeles Unified School Dist., 60 Cal. App. 5th 1092, 1106 (2021). Instead, they represent independent causes of action subject to different elements of proof, and an employer may be liable for either of those claims without being liable for discrimination.

    Disability Retirement Under CalPERS Is Not A Reasonable Accommodation

    CDCR submitted no evidence to show that from May 2018 through November 2018, it identified medical demotion to an alternative position as a potential accommodation for the correctional officer’s permanent work restrictions. The correctional officer consented to a medical demotion, and the CDCR proceeded to identify and offer her an alternate position, after which the officer declined to accept it. The Court found that this was evidence that a reasonable accommodation within plaintiff’s permanent restrictions was offered and refused.

    With respect to plaintiff’s mental disability, CDCR presented evidence that she was mentally incapable of working in any capacity beginning in January 2019. This was evidence that there was no accommodation available that would have permitted the officer to work in any position with CDCR as of January 2019. As a result, CDCR placed Plaintiff on an unpaid leave of absence. The Court found that CDCR had met its initial burden on summary adjudication.

    Plaintiff argued that CDCR could have, but refused to provide her with an alternative accommodation in the form of disability retirement under the California Public Employees’ Retirement System (“PERS”). The Court found that this was not a reasonable accommodation within the meaning of Gov. Code Section 12940(m)(1) because the purpose of a disability retirement under PERS is not to facilitate a disabled employee’s eventual return to work, but to permit the disabled employee to be “replaced by more capable employees” (§ 20001) while alleviating “the harshness that would accompany the termination of an employee who has become medically unable to perform his duties.” Haywood v. American River Fire Protection Dist., 67 Cal. App. 4th 1292, 1304 (1998). Thus, the Court found that from the employee’s perspective, such a separation is virtually indistinguishable from a dismissal. The Court noted that the “FEHA does not obligate an employer to choose from the best accommodation or the specific accommodation a disabled employee or applicant seeks” as long as the accommodation chosen is reasonable. Raine v. City of Burbank, 135 Cal. App. 4th 1215 (2006). Thus, adopting the interpretation that a disability retirement constitutes a reasonable accommodation would permit an employer to comply with the mandate of Section 12940(m)(1) by separating and replacing the disabled employee even if other reasonable accommodations might also be available that would permit that employee to return to work. The Court found that such an outcome would be directly contrary to the purpose of that statute, which is to encourage employers to pursue all reasonably available means to facilitate a disabled employee’s return to work.

    Employee Must Identify A Reasonable Accommodation That Was Available During The Interactive Process

    The Court also found that CDCR had satisfied its initial burden on summary adjudication on the claim for failure to engage in the interactive process by showing that reasonable accommodations were offered where available, and to show that no reasonable accommodation was available with respect to the officer’s mental disability.

    In opposition, the plaintiff failed to produce any evidence to show that the accommodations offered were unreasonable and failed to produce any evidence of an available reasonable accommodation that could have been offered in response to her mental disability. Instead, the officer argued that CDCR’s actions during the interactive process were conducted in bad faith, with ineffective communication, that CDCR failed to affirmatively assist the officer in identifying more potential accommodations, placed the officer in an informational disadvantage, and that CDCR had failed to seriously consider the extent of available accommodations.  The Court held that regardless of how deficient an employer’s participation in the interactive process may be, “[u]nless, after litigation with full discovery, [an employee] identifies a reasonable accommodation that was objectively available during the interactive process, he has suffered no remedial injury from any violation of Gov. Code Section 12940(n).” Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1019 (2009).

    Becoming Disabled Is Not A Protected Activity

    Finally, the Court affirmed summary adjudication on the claim for retaliation where the correctional officer alleged that CDCR engaged in retaliation by subjecting her to adverse actions of being placed on an unpaid leave as a result of her becoming involuntarily disabled.  The Court held that while a request for a reasonable accommodation is a protected activity, the involuntary act of becoming disabled and the act of notifying one’s employer of one’s medical status, even if such medical status constitutes a disability under the FEHA, does not constitute protected activity.

    By: Dawn Lurie

    The passage of the vaguely named “Right to Privacy in the Workplace Act” led to widespread chatter that the law possibly prohibited employers from using E-Verify unless they were explicitly required to do so under federal law. In response to the confusion, Seyfarth attorneys sought clarification from Illinois state representatives and the Illinois Department of Labor (IDOL).

    Illinois first implemented the E-Verify provisions in the Right to Privacy in the Workplace Act under Public Act 95-138 in 2008, with an amendment in 2010. Now, new amendments under Public Act 103-879, effective January 1, 2025, further update the law. Key changes include mandatory employee notification related to Form I-9 inspections (remarkably similar to obligations in the state of California), protection against retaliation for exercising rights under E-Verify, and specific corrective action opportunities for employees with tentative nonconfirmations. Employers must also adhere to strengthened anti-discrimination provisions, ensuring that E-Verify is used fairly and transparently.

    On October 29, IDOL issued a much welcomed FAQ on the Right to Privacy in the Workplace Act (“SB0508” or “the Act”). It addresses the widespread misinformation and misunderstanding about SB0508’s impact on E-Verify in Illinois and was created by IDOL in response to policy clarification requests.

    Most notably, the new FAQ clarifies that SB0508 does not prohibit employers from voluntarily use of E-Verify for employment verification.

    The IDOL FAQs help Illinois employers better understand their obligations under SB0508. FAQ #4 reads:

    Q. May Illinois employers choose to voluntarily use E-Verify?

    A. Yes. Illinois law does not prohibit any employer from using E-Verify. However, employers who use E-Verify must follow the requirements of the Right to Privacy in the Workplace Act.

    The FAQ goes on to remind employers that “as of January 1, 2025, prior to enrolling in the E-Verify System, employers are urged to consult the Illinois Department of Labor’s website for current information regarding the accuracy of the program”.

    The FAQ also encourages employers to review and understand their legal responsibilities regarding E-Verify.  Employers are also reminded that the Act prohibits misuse of E-Verify and imposes specific training and recordkeeping requirements on employers. The FAQ also discusses E-Verify participation posting requirements, an employer’s obligation in the event of a discrepancy in an employee’s employment verification information, and how to file a complaint.

    What is the Cost of Non-compliance?

    State investigations remain complaint-driven, with significant increases in monetary fines for willful and knowing violations of the Act, along with broadly defined penalties. Courts may award actual damages plus costs to the charging party and can impose additional penalties. These penalties are nebulously outlined, ‘In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the employer charged and the gravity of the violation shall be considered. The penalty may be recovered in a civil action brought by the Director in any circuit court.’ Although it remains unclear how SB0508 will be enforced, Seyfarth attorneys are committed to closely monitoring its implementation.

    What are Key Provisions in SB0508 and the 2025 Amendments?

    1. Voluntary Use of E-Verify: The FAQ reaffirms that Illinois employers may voluntarily use E-Verify, provided that the employer follows the requirements outlined in the Act.  As mentioned above, there is no ban or restriction against the voluntary use of E-Verify in Illinois, countering any contrary assumptions or misinformation.

    2. Enhanced Worker Protections: SB0508 expands worker protections by requiring employers to:

    • Follow updated notification timelines. When an employer receives notification from a federal or state agency of a discrepancy as it relates to work authorization, including a tentative nonconfirmation (TNC) from E-Verify, the law reiterates the E-Verify rule that no adverse action should be taken. Additionally, it adds a requirement that employers provide written notice of the issue to the employee pursuant to the following guidelines:
      • Notice should be given via hand-delivery if possible, or alternatively by mail and email within five business days, unless federal law or a collective bargaining agreement specifies a shorter timeline.
      • Note that currently, E-Verify provides a 10-day period to deliver the notice and take action but does not mandate specific timing for the notification.
      • The notice must include an explanation of the determination, the time period for the employee to notify the employer if they wish to contest the determination, the time and date of any meeting with the employer or with the inspecting entity, and notice that the employee has the right to representation.
      • If requested by the employee, the employer must provide the original notice from the federal or state agency within seven business days (note: E-Verify rules already require employers to deliver the “Further Action Notice” to employees)
    • Notify employees of Form I-9 and employment record inspections: Employers must inform employees if their Form I-9 documentation will be inspected. Specifically, employees must be notified of any inspection within 72 hours of receipt, and where appropriate, employee representatives should also be notified. Per the law’s requirement, IDOL will develop and publish a template posting notice that employers may use to comply with this requirement.
    • Notify employees of discrepancies or suspect document determinations made by inspecting entities, generally Homeland Security Investigations (HSI).  Once the inspection is completed, employees should have an opportunity to resolve any verification discrepancies. Employers must notify the employee within 5 business days (or sooner if federal law or a collective bargaining agreement requires). The notification must be hand-delivered. If hand delivery is not possible then SB0508 requires that the notice be sent by mail and email (provided the email address of the employee is known). The notice must include information such as:
      • an explanation of the potential invalidity of the employee’s work authorization documents; a timeframe to respond if they wish to contest;details of any scheduled meetings regarding the issue, if known; and
      • information about their right to representation at these meetings. There are also timelines for providing information to employees if the determination was contested which include onerous requirements such as providing a redacted original notice from the inspecting entity within 7 business days (when such notice is requested by the employee).

    It is likely that the hand delivery and snail mail mandates, specifically with respect to E-Verify TNCs, will prove extremely burdensome for employers, especially those that utilize electronic onboarding and I-9 systems. This is an area in which we are seeking further clarification from IDOL.

    Unlike SB0508, HSI does not dictate the timeline to notify employees, but rather expects employers to fully address a Notice of Suspect Documents (NSD) within 10 days—either by terminating the employee or ensuring alternative documents are actively under HSI review within this period for those that “contest” the findings. Specifically, when HSI issues an NSD, both the employer and the affected employee(s) are given an opportunity to provide evidence of valid U.S. work authorization if they believe HSI’s findings are incorrect. The 10 day timeline, which incidentally is not required by regulation, is tight: employees must respond promptly by presenting alternative documentation, which the employer then submits to HSI for further review. In some cases, HSI agents may request direct meetings with employees to verify their status.

    3. Existing Procedural Requirements: The existing Illinois law mandates that employers and authorized agents using E-Verify adhere to a structured process involving:

    • Employer Certifications: Employers must certify compliance with Illinois-specific E-Verify guidelines upon enrolling in the program. This certification affirms understanding of state-specific rules, including employee notification requirements and anti-discrimination provisions. Specifically, employers must affirm that they have received the E-Verify training materials from the Department of Homeland Security (DHS) and that they have posted the required E-Verify participation and anti-discrimination notices in a prominent place that is clearly visible to prospective employees.
    • Training, Testing, and Certification: Further, all employees who will administer the program must complete the E-Verify Computer-Based Tutorial or equivalent with the appropriate training modules. Users must be certified as having successfully completed training and testing before accessing and using E-Verify. E-Verify offers this training and mandates completion for all new users prior to being allowed into the system. Web Services providers are obligated to create (based on USCIS guidance) these materials and related trainings and associated knowledge tests.  

    Employers must maintain proof of meeting these notification, testing, training, and documentation obligations. Although these requirements already exist in Illinois law, they have often been overlooked by employers. The recent amendments emphasize the importance of following these guidelines to ensure fair treatment of employees and at the same time remain compliant with E-Verify obligations.

    What Do Employers in Illinois Need to Know?

    • Maintaining Compliance: Employers using E-Verify in Illinois should familiarize themselves with these updates to ensure compliance and safeguard worker rights. Notably, E-Verify remains permitted in Illinois, so employers can continue using it without concern. While minor adjustments to compliance processes may be necessary for some, many of the law’s new safeguards are already required by federal E-Verify rules.
    • Audits and Investigations: In cases where an employer is audited by Homeland Security Investigations or is under investigation by the Department of Labor (DOL) or the Department of Justice’s Immigrant and Employee Rights (IER) section, additional notification requirements and timelines will apply. Employers facing such scrutiny should consult competent legal counsel to navigate these situations and ensure full compliance.
    • Anticipated Clarifications: We expect further clarification from IDOL as we get closer to SB0508’s implementation in January 2025. Seyfarth will monitor and review these clarifications and share any significant updates of which employers should be aware.

    Recommended Actions for All E-Verify Employers

    With these changes in mind, Illinois employers should take this opportunity to review and, if necessary, update their E-Verify processes and procedures.  In fact, all employers could benefit from an E-Verify review.  Steps to consider include:

    • Reviewing E-Verify Account Structures: Ensuring E-Verify accounts are set up correctly in terms of entities and locations while also ensuring accounts are accessible only to those who have completed the mandatory training.
    • Maintaining “E-Verify Hygiene”: Ensuring that cases have been timely closed, that all new hires at participating hiring sites have been processed through the system, including those initially delayed by receipts or temporary documents, and that mismatches are timely addressed.
    • Updating the MOU with E-Verify.  Ensuring the registered locations, the required Points of Contact, and the number of employees are accurate, along with the employer’s Federal Contractor status, if applicable.
    • Review for trends and red flags. Employers should run E-Verify reports and pay attention to the Dashboard.For example: do you have a user that is opening and closing multiple cases for the same employee? Do you have open TNCs? Do you have employees with Final Nonconfirmations still working for you?  

    USCIS’s Account Compliance branch is conducting an increasing number of Desk Review audits on accounts, which heightens the need for accurate, up-to-date account management practices. By maintaining accurate and readily accessible records and following E-Verify protocols, employers can help avoid compliance issues and continue to benefit from the program.  While E-Verify may not be suitable for every employer, it stands as a best practice for supporting a legally compliant workforce.

    Looking Ahead

    SB0508 strives to ensure transparent, fair, and lawful employment verification practices, but at the same time this law creates a number of onerous requirements for employers. We will continue to monitor updates and keep communications open with the IDOL in an effort to minimize issues for employers.

    For more information on the Right to Privacy in the Workplace Act or for other questions regarding E-Verify compliance, or questions relating to I-9 compliance, internal immigration assessments, worksite enforcement audits, Department of Labor immigration-related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

    By Ashley Jenkins and Kristina Launey

    Seyfarth Synopsis: A federal court recently held that a football stadium must make reasonable modifications to its seating policy to allow a wheelchair user with a ticket for a non-wheelchair accessible seat access to view the game in person.

    The football season is well underway, and a recent decision from a federal California Court serves as a reminder that stadiums must offer some form of reasonable modification for wheelchair users who do not have a ticket for an accessible wheelchair space at a game. 

    The Complaint alleged the following: One of the plaintiffs — a 78-year old grandfather with polio who uses a wheelchair — received a ticket to see a game with his family.  However, none of the family’s tickets were for wheelchair accessible seats (i.e., open spaces for a wheelchair) and could only be reached by stairs.  As there were a number of unoccupied wheelchair seats nearby, the grandfather took one of those seats.  Stadium security officers refused to let the grandfather remain in that seat, claiming it was against policy, and told the plaintiff he could watch the game on the TV in the concourse.  When the family objected, the security officers threatened to eject the whole family if they did not stop complaining. The family had to carry the grandfather to a non-accessible seat which embarrassed him and prevented him from using the restroom during the game.  Meanwhile, the wheelchair space remained empty for the entire game.

    The grandfather and his son brought suit, alleging that the stadium owner had discriminated against them in violation of the ADA and California’s Unruh and Disabled Persons Acts. Plaintiffs argued that the stadium owner had failed to make a reasonable modification to its normal seating policy to allow the grandfather to watch the game in person in an accessible location and retaliated against them when they complained by threatening to eject them from the game.   

    The stadium owner moved to dismiss the case, arguing, among other things, that the ADA regulations have detailed ticketing regulations and none of them require stadiums to allow persons who do not have a ticket for a wheelchair seat to occupy such a seat.  The Court disagreed, holding that: “Whether or not defendants were required to permit the [plaintiffs] to use the empty wheelchair seats [they] had identified, the ADA required them to offer [the plaintiff] some reasonable accommodation to account for his wheelchair-bound status.”  In short, the Court found that the ADA required that the stadium make some reasonable modification beyond what was offered – watching the game in the concourse on a TV.  The Court also held that the Complaint stated a claim for retaliation based on the alleged threatened ejection from the game.

    It is important to keep in mind that this was just a decision on a motion to dismiss in which the Court had to assume that all the facts alleged by the Plaintiffs are true.  What actually transpired, and the legal decisions that flow from those facts, may be much different after discovery and an adjudication on the merits.  Nonetheless, the decision provides some important reminders.  First, adhering to specific regulatory mandates, such as the ADA’s ticketing rules, is not always sufficient.  When there is a request, public accommodations must also make reasonable modifications to normal policies, practices and procedures, unless doing so would fundamentally alter the nature of the goods and services normally provided.  The DOJ has made this clear in other cases.  Second, responding to requests for reasonable modifications with empathy and a willingness to solve the problem at hand can often be a winning strategy for lawsuit avoidance. Edited by Minh Vu and John Egan

    By Justin K. Beyer

    Seyfarth Synopsis: In 2016, the Defend Trade Secret Act, 18 U.S.C. § 1836 (the “DTSA”), passed Congress and went into effect. At its heart, it effectively codified the Uniform Trade Secrets Act at the federal level, creating a federal cause of action. Prior to the enactment of the DTSA, a large body of federal common law had developed around the remedies available to a plaintiff after a defendant allegedly misappropriated a trade secret, including the “inevitable disclosure doctrine.” Through this doctrine, even in the absence of a non-compete or non-solicitation agreement, a court could fashion a remedy that enjoined a defendant from performing certain or all work on behalf of their new employer.

    The seminal decision on the inevitable disclosure is PepsiCo. v. Redmond, a 1995 Seventh Circuit decision. 54 F.3d 1262 (7th Cir. 1995). Through PepsiCo., the Seventh Circuit found that a court had the inherent power to enjoin a former employee from working with a new employer, in whole or in part, if that defendant misappropriated trade secrets, and their conduct was duplicitous in so doinFollowing this decision, numerous courts throughout the country have adopted the inevitable disclosure doctrine. See Phoseon Technology, Inc. v. Heathcote, 2019 WL 7282497, at *11 (D. Or. 2019) (identifying states adopting the inevitable disclosure doctrine).

    However, with the passage of the DTSA, one of the provisions contained within the DTSA created uncertainty as to the ongoing viability of the inevitable disclosure doctrine. In particular, 18 U.S.C. §1836(b)(3) states:

    Remedies.—In a civil action brought under this subsection with respect to the misappropriation of a trade secret, a court may—

    (A) grant an injunction—

    (i) to prevent any actual or threatened misappropriation described in paragraph (1) on such terms as the court deems reasonable, provided the order does not—

    (I) prevent a person from entering into an employment relationship, and that conditions placed on such employment shall be based on evidence of threatened misappropriation and not merely on the information the person knows

    (Emphasis added). And to that end, some courts have determined that inevitable disclosure relief is unavailable under the DTSA as a result. See, e.g., IDEXX Labs., Inc. v. Bilbrough, 2022 WL 3042966, **5-6 (D. Me. Aug. 2, 2022) (discussing and collecting cases).

    Late last week, though, the Northern District of Illinois in My Fav Electronics, Inc. v. Currie, 24-c-1959, 2024 WL 4528330 (N.D. Ill. Oct. 18, 2024) (Pallmeyer, J.), further muddied the waters on this question, when it enjoined the defendant Currie based on the inevitable disclosure doctrine. Specifically, the court entered a preliminary injunction enjoining the defendant from performing certain work, including soliciting former customers of the plaintiff, for a year from the date of the order, despite the fact that the defendant had not signed a non-compete or non-solicitation agreement with the plaintiff.

    While the full extent of the defendant’s conduct is discussed in the court’s detailed opinion, for purposes of this article, defendant Currie’s conduct can be summarized as follows:

    • Left plaintiff’s employ after perceiving to have been demoted;
    • Following her demotion, she downloaded via email and external media scores of files from plaintiff;
    • Attempted to hide such downloads by renaming files to appear to be personal in nature;
    • Returned the plaintiff’s laptop computer in an unusable state, after allegedly “dropping it in the bathtub”;
    • Allegedly retained the documents to defend herself if plaintiff was ever sued for purported unscrupulous conduct and allegedly turned over the documents to an attorney; and
    • Denied accessing documents post-termination, despite metadata showing she had accessed several of the documents post-termination and at times that would suggest use on behalf of her new employer.

    On this record, the court analyzed the extent to which defendant would be enjoined. It is important to note that Currie agreed to certain injunctive relief, including returning plaintiff’s property, and not using it further, but she argued against further injunctive relief (though her arguments more focused on the lack of trade secret status than the scope of the injunction).

    Despite that, the court still determined that it had the power to enjoin defendant in a manner that, at least at first blush, would call into question the interplay between DTSA and PepsiCo. And while that is seemingly inconsistent with certain federal court decisions, the My Fav court’s decision actually appears to be wholly consistent with the statutory framework of the DTSA.

    To wit, while the DTSA prohibits a court from “prevent[ing] a person from entering into an employment relationship,” the statute also appears to permit the court to place “conditions” “on such employment” “based on evidence of threatened misappropriation.” In other words, provided that a plaintiff can demonstrate that the defendant threatens continued misappropriation, the court may place conditions on that employment. And this, in turn, is the lynchpin of the PepsiCo. decision; i.e., based on the defendant’s prior conduct, they cannot be trusted to differentiate between information that must be protected from their prior employment and will “inevitably disclose” that information in performing their job on behalf of their new employer. 54 F.3d at 1271. In this case, the My Fav court restrained Currie from “contacting, soliciting, or otherwise participating in the procurement of Apple device buyback services, any of [Plaintiff’s] existing customers”, which has the effect of “screen[ing]” defendant “from working on procurement matters related to [plaintiff’s] most important opportunities … but will not be restricted from performing job responsibilities unrelated to the confidential information at issue here.” 2024 WL 4528330, at *18. This decision seems to thread the proverbial needle between the inevitable disclosure doctrine and the DTSA’s prohibition on outright prevention of new employment. What this means, practically speaking, is that PepsiCo v. Redmond and the inevitable disclosure doctrine appear to be alive and well, provided that the court does not completely restrict the defendant’s employment and tailors the relief to prohibiting activities that would threaten the plaintiff’s trade secrets. For plaintiffs seeking injunctive relief against a former employee, the My Fav decision may provide a roadmap for tailoring the relief sought and should be considered heavily.

    By: Lukas Huldi (senior fellow) and Erin Dougherty Foley

    Seyfarth Synopsis: The Seventh Circuit’s recent decision – holding that an employee’s request for a second chance that allows them to change their behavior to meet employer expectations is not a “reasonable accommodation” under the ADA – clarifies the standard for employers.

    The Seventh Circuit Court of Appeals released a decision on October 17, 2024, clarifying that an employee’s request for a second chance at meeting job performance standards is not a “reasonable accommodation” under the ADA. Schoper v. Board of Trustees of W. Ill. Univ., 2024 WL 4508970 (7th Cir. 2024).

    Professor Sarah Schoper was a tenure-track professor at the Western Illinois University when she suffered a pulmonary embolism that caused a traumatic brain injury. Schoper developed physical disabilities and high-functioning mild aphasia – a condition that causes difficulty retrieving words. Following her neurologist’s advice that intellectual activity would speed her recovery, Schoper returned to teaching as quickly as possible. The University provided physical accommodations and allowed her to return to teaching her previous courses without serving on any University committees.

    Under the University and faculty union’s collective bargaining agreement, tenure-track faculty received retention evaluations within five years of joining the University. In their sixth year at the University, faculty could apply for tenure. Applicants not recommended for tenure would receive a terminal contract for the following year. The agreement provided for a “stop-the-clock” provision, allowing faculty to request an additional year to apply for tenure in the case of significant illness. To utilize this provision, faculty had to request the extension by the year six application due date. In this case, Schoper did not request to “stop-the-clock” but instead applied for tenure in the time provided. Only after Schoper received negative recommendations from the Department committee and Department chair did she request more time to achieve tenure. By this time, however, the due date to “stop-the-clock” already had passed, and the Department chair concluded that he could not grant that request under the collective bargaining agreement.

    After an extensive review process involving five university officials, three separate committees, and several requests for reconsideration, Schoper was denied tenure and issued a terminal contract. Of particular concern to the University was Schoper’s student evaluations, which consisted of both qualitative feedback and numerical ratings on a five-point scale.

    Before her injury, Schoper’s average numerical student evaluation score was over 4.0. After her injury, however, Schoper could no longer see the left side of her classroom and struggled to read non-verbal cues and track discussions. Schoper slowed her teaching pace and wrote out agendas on the white board to stay on track. After her first semester back, students began to leave negative comments on her evaluations and her average teaching score dipped from 4.6 to 3.8. By the time her tenure application was under review, Schoper’s average teaching scores in seven of her ten most recent classes ranged from 3.14 to 3.78, well below the University’s standard.  Additionally, students had complained that Schoper had class favorites, graded based on personal preference, did not take feedback well, wasted class time, and regularly complained in class about other faculty and not having tenure.

    After receiving her terminal contract, Schoper sued the University, alleging that it discriminated against her on the basis of her disability and refused to offer reasonable accommodations in violation of the Americans with Disabilities Act (“ADA”). The District Court granted the University summary judgement, finding that Schoper could not establish a genuine dispute of material fact as to whether her disability was the but-for cause of her termination. Schoper appealed to the Seventh Circuit.

    To provide a failure to accommodate claim, a plaintiff must show: (1) she is a qualified individual with a disability; (2) the employer knew of her disability; and (3) the employer failed to reasonably accommodate her disability. Schoper’s claim failed the first and third of these elements.

    Schoper failed to meet the first element of this claim because the ADA does not protect individuals who do not meet the position’s requirements. Although Schoper had previously been recognized as a “superior teacher,” after her injury she no longer met the “necessary prerequisites” for the tenured position. Tenured positions at the University required a certain level of teaching ability—measured by average student evaluation score of at least 4.0—and Schoper no longer met that criterion. Because Schoper could not meet the position’s minimum criteria, the Court concluded she was not a “qualified individual” under the ADA.

    Schoper also did not show that the University failed to offer a reasonable accommodation. A reasonable accommodation is one that allows a disabled employee to perform the essential functions of the position. The belated time extension Schoper requested was, according to the court, not one for an accommodation, but for a “do-over.” Schoper herself decided to return to teaching quickly to hasten recovery at the risk that her student evaluation scores would drop. The ADA does not require the University to insulate her from her chosen strategy. To the contrary, the court had previously decided in Siefken v. Village of Arlington Heights that an employee’s request for a second chance to change their own behavior is not a reasonable accommodation.

    Schoper was similarly unsuccessful in her disability discrimination because, the court concluded, the evidence would not allow a reasonable factfinder to conclude that her disability caused her termination. Even if Schoper were a qualified individual under the ADA, she would not be able to shoulder the burden of showing that her traumatic brain injury was the “determinative factor” in the University’s decision to deny her tenure.

    While the reviewers focused on Schoper’s comparatively poor teaching scores, which were caused by her brain injury, they did not consider them in isolation. Rather, they looked at the scores in conjunction with students’ written evaluations. None of the evaluations highlighted by the reviewers concerned Schoper’s disability; they instead focused on other problems, such as Schoper’s playing favorites with students, struggling to handle feedback, and complaining about other teachers in class. Even the most incendiary student comments looked at by the reviewers—one referring to Schoper as a weed that should be pulled from a garden and another comparing her to a preschooler—were not necessarily discriminatory as these comments could just as easily be directed to any teacher of questionable quality. According to the court, a reasonable juror could neither draw a discriminatory animus from those comments themselves, nor ascribe such an animus to all comments in general, let alone conclude that the reviewers relied on discriminatory comments.

    Although results such as this one may often seem harsh, Courts interpreting the ADA have held that providing an employee with an accommodation does not require the employer to lower their expectations as to an employee’s job performance.  This case further confirms that when an employee fails to meet the expectations of a position, even if caused by a disability, an employer is not required to offer the employee another shot at meeting expectations. Such a request is not a “reasonable accommodation” required by the ADA. 

    Please contact the authors, a member of Seyfarth’s Leave and Accommodations Team or your Seyfarth lawyer with any questions you may have.