Kevin D. Kelly

Kevin Kelly helps clients solve labor and employment law problems with practical, cost-effective solutions. Kevin counsels clients in a variety of industries on a wide range of labor and employment issues on a daily basis. He is also an experienced litigator who has defended clients in actions covering the gamut of labor and employment law claims, including: discrimination, retaliation and harassment claims under state and federal law; class/collective action wage and hour claims under the Fair Labor Standards Act (FLSA) and state law; whistleblower claims; and claims for breach of contract, defamation and a wide range of other torts.

Kevin is particularly experienced in traditional labor issues, such as union election campaigns, strikes and picketing, and negotiation of collective bargaining agreements. He has handled numerous labor arbitrations involving a variety of issues, and he regularly counsels companies in the construction, residential management and other industries on labor-management relations issues, including discipline and discharge of union employees and interpretation of collective bargaining agreements. Kevin is counsel to a multiemployer bargaining association in the residential management space, and he is also counsel to two Taft-Hartley trust funds.

In addition to his experience in employment discrimination, wage and hour, whistleblower and labor litigation, Kevin has also represented clients in non-competition and trade secret litigation in a variety of forums. He has prepared viable restrictive covenants for companies, and he has drafted numerous employment and severance agreements for C-level executives and other employees.

Kevin regularly assists clients with workplace investigations, wage and hour compliance reviews, reductions in force, employee handbook reviews, ADA reasonable accommodation issues, compliance with state and federal leave laws and local sick leave ordinances, implementation of pre-dispute arbitration programs, OSHA compliance and affirmative action issues. He often conducts workplace training for supervisors on a variety of employment law topics.

Kevin is well versed in the numerous issues stemming from the COVID-19 outbreak, such as the Families First Coronavirus Response Act (FFCRA), Coronavirus Aid, Relief, and Economic Security Act (CARES Act), stay-at-home and related orders, and all of their impacts on employers, employees and independent contractors, including critical infrastructure and essential services determinations, paid and unpaid leave, layoffs, pay reductions, reduced hours, furloughs, downsizings, expanded unemployment, and their interaction with numerous local, state and federal laws and regulations. Many of these issues have significant interactions with employee benefits, tax, Small Business Administration, and other issues, where we collaborate closely with our colleagues experienced in those practice areas.

Kevin's experience includes:

Appellate Decisions

• Summary judgment for the employer on a plaintiff's disability, sex and race discrimination claims. Case cite: 520 F.3d 781 (7th Cir. 2008)
• Summary judgment for the employer on a plaintiff's Title VII race, sex and pregnancy discrimination claims and FMLA claim. Case cite: 125 Fed.Appx. 705 (7th Cir. 2005)
• Secured summary judgment for employer on a complex and groundbreaking ADA failure to accommodate claim in which he obtained a decision striking the purported "expert" testimony of the plaintiff's vocational rehabilitation counselor under Daubert and Kumho Tire. Case cite: 368 F.3d 809 (7th Cir. 2004)

Significant Reported District Court Decisions

• Summary judgment for the employer on Title VII claims involving alleged racial discrimination and retaliation with respect to pay rates. Case cite: 2014 WL 5151427 (S.D. Ill. Oct. 14, 2014)
• Partial summary judgment for the employer with respect to age and race discrimination claims of construction foreman. Case cite: 2011 WL 2222136 (D. Or. Jan. 24, 2011)
• Summary judgment for the employer on varied claims of sexual harassment, sex discrimination and retaliation under Title VII, failure to accommodate under the ADA and intentional infliction of emotional distress related to the employee's alleged chemical exposure at work. Case cite: 2008 WL 4442590 (N.D. Ill. Sept. 29, 2008)
• Summary judgment for the employer in a novel race discrimination and retaliation case. Kevin was able to demonstrate that the employee's report of "racial profiling of customers" was not protected activity under Title VII. Case cite: 2008 WL 2952308 (N.D. Ill. July 30, 2008)
• Summary judgment for the employer on plaintiff's Title VII, ADA and FMLA claims. Case cite: 2008 WL 597443 (N.D. Ill. Feb. 27, 2008)
• Summary judgment for the employer in a case involving allegations that the employee was required to speak English-only at work. Case cite: 445 F.Supp.2d 924 (N.D. Ill. 2006)
• Summary judgment for the employer in a sexual harassment case involving the employee's receipt of allegedly harassing e-mail messages from a supervisor. Kevin demonstrated that the employee failed to utilize the employer's internal mechanism for reporting harassment, and thus her claim was barred. Case cite: 2006 WL 2699416 (N.D. Ill. Sept. 19, 2006)
• Summary judgment for the employer on plaintiff's discriminatory termination claim. Case cite: 2006 WL 2224054 (N.D. Ill. July 31, 2006)
• Summary judgment for the employer on a white employee's reverse discrimination and retaliation claims. Kevin disproved the employee's claim that he was told by management not to hire minorities. Case cite: 2006 WL 2583725 (N.D. Ill. Sept. 5, 2006)
• Summary judgment for the employer in a racial harassment case brought by a Union shop steward. Case cite: 2005 WL 3804725 (M.D. Ala. March 1, 2005)
• Summary judgment for employer on multi-count age, disability and race discrimination claims of two employees. Case cite: 2004 WL 1336364 (N.D. Ill. June 14, 2004)
• Summary judgment for employer — age and disability discrimination case. Case cite: 165 F.Supp.2d 780 (N.D. Ill. 2001)

Other Significant Cases/Representations

• Defended a staffing company in a class action case under the Illinois Wage Payment and Collection Act involving more than 21,000 class members and negotiated a comprehensive settlement of the matter on a claims-made basis
• Defended a construction firm in three separately-filed wage and hour class actions in California and negotiated a settlement of the matters following consolidation and removal to federal court under CAFA
• Obtained federal court injunction halting a widespread work stoppage by a Union that violated a no-strike clause in a collective bargaining agreement
• Prepared a Petition for Certiorari to the U.S. Supreme Court in a complex case under the National Labor Relations Act involving the distinction between subcontracting and a partial business closing
• Defended a construction firm against retaliation claims under state law in a bench trial in federal court in Portland, Oregon
• On four separate occasions, Kevin has obtained dismissals for employers after proving that a plaintiff has engaged in spoliation of evidence or lied under oath during a deposition
• Guided multiple clients through large-scale reductions in force in 2008-2009 and 2020
• Counseled numerous clients on the implementation of pre-dispute arbitration agreements covering employees in multiple states, including the structuring of such agreements to avoid class/collective action claims