Michael Freeborn's Employment Law Practice

Michael Freeborn's Practice Areas:

Antitrust Litigation
Commercial Litigation
Employment Law
Environmental Litigation
Product Liability
Securities Litigation

His employment law practice has included the following cases:

	*Secretary of Labor v. National Manufacturing Co.* Michael's practice has included representation of employers in OSHA cases, beginning shortly after passage of the law in 1970. He was General Editor of the text entitled OSHA Law, published by the Illinois Institute for Continuing Legal Education. National Manufacturing Co., of Sterling, Illinois, is a leading manufacturer of hardware, including fasteners like screws and nails. This process is noisy, and there is no way to eliminate it. OSHA cited the company for alleged violations of the government's noise standard, and National contested the citation because it believed it was doing everything feasible to control noise. In an administrative proceeding before the Occupational Safety and Health Review Commission, the Secretary of Labor sought an order requiring National to allow entry of outside experts retained by the government. Not wishing to expose the company's trade secrets to such nongovernmental employees, Michael objected. Entry by the experts was barred, based on Review Commission case law which was then controlling. Because the Secretary professed that the government could not prove feasibility of additional noise control measures without such expert testimony, the case was dismissed.
	*Secretary of Labor v. Commonwealth Edison* Another noteworthy loss by the government occurred in a case against ComEd, the electric utility in northern Illinois. Until recently, ComEd operated numerous fossil fuel generating stations, some of which had adjacent coal piles and related facilities. Coal was received by rail car and ComEd then prepared it for use as fuel in the generating stations. The coal dust can be volatile. After a fire and explosion at one of the locations, OSHA showed up and, pursuant to longstanding company policy of cooperation with the government, ComEd allowed the inspectors to enter. However, OSHA then decided to transfer responsibility for the case to MSHA, the Mine Safety and Health Administration of the Labor Department. Since mining is such a dangerous occupation, MSHA's regulations are much more onerous than OSHA's regulations. Moreover, because ComEd's facilities are not "mines," compliance with MSHA's requirements would have been extremely expensive, if it were feasible at all. So, when MSHA representatives later arrived, ComEd politely denied them entry -- explaining that the company wished to have its lawyers challenge MSHA's jurisdiction in federal court. This was not the first time that MSHA had attempted to assert jurisdiction over an electric utility's coal handling facility. The Labor Department's decision to transfer jurisdiction from OSHA to MSHA, which was memorialized in a formal inter-agency agreement, was nationwide in scope. Other utilities had challenged this assertion of jurisdiction and had lost. Michael and his colleagues represented ComEd in federal court in Chicago. The District Court ruled that MSHA had no jurisdiction. Although the Secretary of Labor appealed to the U.S. Court of Appeals for the Seventh Circuit, the appeal was later abandoned. The District Court's ruling thus became final. We believe ComEd is the only utility in the nation to have ultimately succeeded in challenging this assertion of jurisdiction by MSHA.
	*Flowers v. Abex* Michael's employment law practice has not been limited to OSHA cases. He has also tried to jury verdict a number of discrimination cases. Abex Corporation formerly had a manufacturing plant in Chicago Heights, Illinois. However, when a recession hit heavy industry in the midwest, Abex found it necessary to lay off a number of employees, including a Black foreman named Donald Flowers. Mr. Flowers did not accept that his layoff was due to economic conditions beyond control of the company, and instead filed a suit in federal court alleging that he was the victim of racial discrimination. Unfortunately for Mr. Flowers, the evidence Michael presented at trial included the testimony of the layoff decisionmaker, a Caucasian named Charles Brenner. Mr. Brenner, the Plant Superintendent, had spent much of his life caring for children of all races. He and his wife were both foster parents of a number of Black children in particular, and he was president of a community organization whose facilities were used largely by Black residents of the area. Thus it seemed unlikely that his decision regarding Mr. Flowers could have been motivated by bigotry. The jury deliberated for less than 30 minutes, before rendering a verdict of not guilty.
	*Hrobowski v. Commonwealth Edison* John Hrobowski was a Black lineman for ComEd. He accused the company of discriminating against him on the basis of race and perceived disability. After what the U.S. Court of Appeals has described as a "withering" cross examination by Michael, the District Court dismissed the case during trial. The trial court found that Mr. Hrobowski had repeatedly lied under oath on his applications to proceed in forma pauperis (meaning that his court costs would be waived and an attorney would be appointed). However, in a split decision, the Court of Appeals recently concluded that there were other mistakes of the District Court itself which required the case to be reversed and remanded for a new trial. The case remains pending.