The Workplace Report with Ancel Glink

If employers needed another reminder as to why they must be aware of the laws affecting pregnant women, they got it last Tuesday in the form of a federal lawsuit against the Chicago Board of Education. The lawsuit , brought by the Department of Justice, alleged the existence of “regular, purposeful, and less-favorable treatment of teachers because of their sex (pregnancies)” at Scammon Elementary School, located on Chicago’s Northwest side. The Department of Justice stated that it brought the lawsuit “to enforce the provisions of Title VII of the Civil Rights Act of 1964.” Title VII forbids employers from discriminating against an employee due to race, religion, gender, age, disability, and, after the Pregnancy Discrimination Act , pregnancy. Title VII applies to employers with more than 15 employees, and forbids an employer from: Refusing to hire a job applicant because she is pregnant;  Firing, demoting, or disciplining an employee for being pregnant;  Discriminating ...

Yesterday we reported on five legislative initiatives in Illinois that impacted employers in 2014. Today we list five case decisions which also impacted Illinois employers this year. 1. The NLRB issued several rulings which found employee misbehavior both on and off the job was protected concerted activity. Cursing by employees, both to and about their bosses was found to be protected activities. Complaining on social media about the workplace and supervisors was also pretty much uniformly upheld as protected activity. The most disturbing development to employers from the NLRB was the recent decision in Purple Communication holding that employer rights to control use of its e-mail system may be trumped by employee Section 7 rights.  This is case law likely to be adopted by the ILRB and IELRB. While this immediately effects private employers, it is widely believed that the state’s public employee labor relations board will follow suit. 2. In Burwell v. Hobby Lobby th...

2014 witnessed significant expansion of protections for employees in Illinois. Here are our top five: 1. The Illinois Human Rights Act (“IHRA”) underwent two significant changes. One was the expansion of the IHRA’s prohibition against pregnancy discrimination. In large part mirroring the EEOC Guidance on this topic released earlier in the year, the IHRA amendments not only prohibit pregnancy discrimination but require covered Illinois employers to make reasonable accommodations for pregnant employees. Employers take note: Not only does the amendment include posting requirements, but employers should review their policies to ensure continued compliance. Read our blog post on this subject  here . 2. The other significant amendment to the IHRA in 2014 was the inclusion of protections under that Act for interns. Not only did it expand coverage under the Act to interns, but also adopted the FLSA definition of intern, which will likely serve as the legal definition of a...

Readers of this blog who work in the technology section have probably heard the term “H-1B visa.” Employers in other industries requiring specialized knowledge might be familiar with H-1B visas as well. An H-1B visa allows an employer to hire a foreign citizen who works in a “specialty occupation.” Generally, specialty occupations are those occupations that require advanced skill sets, like computer engineering or medicine. To qualify as a specialty occupation, a bachelor’s degree or higher is generally required, and generally only those possessing a bachelor’s degree are eligible for an H-1B visa. There are two other types of H-1B visas, labeled H-1B2 and H-1B3 visas, that allow foreign workers to enter the country for research and development projects for the Department of Defense, or if they are fashion models or have international fame, respectively. Employers, however, rarely deal with H-1B2 and H-1B3 visas. An H-1B visa permits a non-citizen to work in the United States for thr...

I had one short tempered boss a long time ago who would invariably react to anything he didn’t like or thought that he wouldn’t like by immediately screaming at the top of his lungs. Here’s an example. My office was situated close to his. The building management was doing some work in the offices and early one morning were working in mine. Apparently the workers were playing music, rather loudly, while they worked. Later that day, when I arrived at work, my boss called me into his office and began yelling (and when he yelled – which was often – most of the floor could hear him) that I was so inconsiderate to play my music so loud and who did I think I was and I disturbed him while he was trying to work.  It was quite a while before I pieced together what happened and when I had the opportunity to respond, I offered my explanation.  He stopped, stared at me and told me to make sure it never happened again. This was the same boss who, when he was mad at you, would exclude you fr...

As has been reported previously in The Workplace Report, the National Labor Relations Board held last week in Purple Communication , that, absent special circumstances justifying restrictions, employers are required under the National Labor Relations Act to allow employees to use employer-provided electronic communications (e-mail) systems to communicate among themselves and with non-employees regarding matters falling within the scope of the term “protected concerted activities”.  Such activities include, but are not limited to, union organizing activities.   While there has been no similar ruling as yet from the Illinois Labor Relations Board or the Illinois Educational Labor Relations Board, it is reasonable for Illinois public employers to plan for the eventual adoption by these agencies of a Purple Communications -type rule.  While some employers may choose to wait until there has been an actual ruling, there are steps that employers can take now to anticipate a Pu...

Yesterday, we gave our first five tips on avoiding litigation in the job application process. While there are no illegal questions – ones where an employer is liable just by asking – there are questions which elicit information upon which it would be unlawful to base a hiring decision. These are the questions to avoid because a litigious unsuccessful candidate will use those questions as evidence of discrimination. Here is the rest of our list as well as additional tips for employers to avoid problems in their hiring process: 6. CRIMINAL RECORD: Acceptable questions: - Have you ever been convicted of [a felony] [one of a list of enumerated crimes]?  (These crimes should be related to public trust or ability to perform the job in question.)   Unacceptable question: - Have you ever been arrested? While government entities can argue that as employers they have a greater need to know of past criminal convictions because their employees are responsible for public fun...

Acceptable v. Unacceptable Questions Everyone knows there are certain questions that an interviewer avoids when talking with a job candidate.  To assist you in keeping your job applicants from becoming future litigants, the following are examples of acceptable and unacceptable questions to ask during an interview. 1. AGE: Acceptable questions:  - Do you meet the minimum age requirement for employment? - As a minor, can you provide proof of age in the form of a work permit? Unacceptable questions: - When did you graduate from high school/college? - In what year were you born? While it is important to determine that a candidate is old enough to be employed, questions regarding date of graduation or year of birth suggest an inquiry about age, which is an impermissible basis on which to make a hiring decision. 2. CITIZENSHIP OR NATIONAL ORIGIN: Acceptable questions: - Consistent with our obligation to provide information to the federal government on eac...

By now virtually everyone in the U.S. (and many elsewhere) have heard or read about the email debacle at Sony, where emails – critical and sometimes nasty emails about the talent that makes the company so much money – were published without the consent of the authors of those embarrassing emails. Some say now that it was the work of a disgruntled employee that brought those emails to light. If the emails of influential Sony executives can be leaked, is any organization safe from the same type of embarrassment? What can any employer learn from the troubles as Sony. 1. A disgruntled employee can be a loose cannon. Unhappy employees (or ex-employees) are a little like that boyfriend of girlfriend that you didn’t treat so sensitively when you knew it was time to move on. They’re often really angry. And sometimes they’re a bit irrational and look for a way to get revenge. Never underestimate the fury of a jilted love or a disgruntled employee. Prepare for the worst. Most supervisors kn...

Reversing a 2007 decision upholding an employer’s right to prohibit employees from using its email system for union organizing purposes, the NLRB on Thursday issue a decision which it says acknowledges the changing way employees communicate. At issue in the case was Purple Communications, Inc’s policy which prohibited employees from using the company’s email system for personal use. The Communication Workers of America union filed a charge with the NLRB after it narrowly lost an election bid to represent the company’s workers, who provide interpreter services. The union claimed that the company’s policy unfairly interfered with employees’ right to communicate on terms and conditions of employment. The NLRB hinted that it might overturn its previous position on this type of employer prohibition when it sought amicus briefs on the case earlier this year.  In ruling in favor of the union, the NLRB said “[E]mployee use of email for statutorily protected communications on nonworking...

On December 4, 2014, the General Assembly passed House Bill 5485 and sent it to the Governor.  HB 5485 is an amendment to Section 14 of the Illinois Public Labor Relations Act that adds “manning” to the list of items that may be taken to interest arbitration by firefighter bargaining units.  Firefighter union representatives claim that this addition “clarifies” the law as it has always been.  But there is a mode of analysis that suggests that the amendment may not be clarifying at all, but rather may muddy the waters of collective bargaining in firefighter units. The specific amendment deals with subsection 14(i) of the statute, which generally contains limitations on the subjects of an interest arbitration decision.  For example, it provides with respect to firefighter bargaining units that an arbitration decision cannot legally deal with such subjects as “the type of equipment (other than uniforms and fire fighter turnout gear) issued or used”; “the total number ...

Do your employees undergo security screenings either before or after work? Is time spent in this activity compensable time under the Fair Labors Standards Act? In Integrity Staffing Solutions v. Busk , 574 US ____ 2014 (December 9, 2014) employees were required to undergo security screening before leaving the warehouse each day. Former employees sued the employer, Integrity Staffing Solutions, alleging they were entitled to compensation for the security screening time of approximately 25 minutes per day. The Ninth Circuit Court of Appeals agreed with the employees finding that the screenings were required by and benefited the employer. Under the Portal to Portal Act, most post work activities are generally not compensable. The Court of Appeals said that the security screening was compensable as “integral and indispensable to the principal activities performed by the warehouse workers. The United States Supreme Court disagreed and reversed the Ninth Circuit decision. The unanimous S...

As readers of The Workplace Report know, we strongly recommend that all employers keep detailed records of their employees’ performance. Doing so will allow employers to protect themselves from unsubstantiated claims of workplace discrimination, and will aid an employer when evaluating employees. There is one piece of legislation, however, that employers who maintain employment records must be aware of: The Personnel Record Review Act. See 820 ILCS 40/0.01, et seq. The Personnel Record Review Act is a state statute, which means that it only applies to employers based in Illinois. The Act requires all Illinois employers with five or more employees to permit an employee to inspect his personnel record at least twice a year. The employer must grant the employee’s request within seven working days, or request a seven-day extension if it has a valid reason for being unable to meet the deadline. The employee is entitled to inspect all documents that are used to determine that employee’s q...

Under Illinois law at-will employees may be discharged at any time and for any reason. Kelsay v. Motorola Inc. , 74 Ill 2nd 172 (1978), recognized the tort of retaliatory discharge as a narrow exception to this general rule. The tort of retaliatory discharge protects employees from adverse employment action in two areas: (1) when pursuing workers compensation benefits and (2) when reporting illegal conduct, otherwise known as whistle blowing. Michael v. Precision Alliance Group, LLC decided by the Illinois Supreme Court December 4, 2014, (2014 IL 117376), involved three employees who were terminated after reporting their employer to the state for shipping underweight product. The trial court found the plaintiffs proved a “causal connection” between their whistle blowing and their termination, but believed the employer’s explanation that the three employees were terminated for legitimate reasons: one was terminated for horse play and two others were terminated due to a reduction in f...

In Whitaker v. Milwaukee County, Wisconsin , decided yesterday, the Seventh Circuit Court of Appeals tossed out former County employee’s claim that Milwaukee County was her employer  within the meaning of the Americans with Disabilities Act (“ADA”), 42 U.S.C. Section 12101, et seq .   Specifically, Whitaker alleged that the County and Wisconsin’s Department of Health Services had failed to accommodate her disability by refusing to extend her period of medical leave, refusing to transfer her to another position, and then terminating her for reasons related to her disability. The main issue on appeal was whether the County can be held liable under a “joint employer” theory for the employment actions of state supervisors that are alleged to violate the ADA which prohibits disability discrimination in the workplace. Employment History Beginning in 2001, Whitaker worked as a corrections officer for the County. In 2005, she sustained a work-related injury to her back and was...

What’s the most bothersome smell in the workplace? Maybe it is the perfume that the person next to you seems to douse themselves in every day. Maybe it’s a combination of the scents that people wear that irritates some employees. Or maybe most people would agree that it’s the scent of that popcorn that someone left in the microwave too long and it started to burn that makes employees want to run from the office gasping for fresh air. While many workers may be bothered by scents in the workplace, the question for employers is what is a reasonable accommodation for an employee who is actually allergic to certain scents. It’s a tricky question because often an employee cannot distinguish the scent that is causing the physical reaction. Moreover, there is no legal duty (although it may be a morale issue) to accommodate an employee who is simply irritated by perfumes or colognes, as opposed to having a genuine allergy or sensitivity which may compromise their health. The good news is th...

Recently, we have reported on the importance of drug and alcohol testing when an employee is injured to determine whether there are any possible intoxication or fraud defenses.  Last week, we suggested that employers require their injured employees to submit to drug and alcohol testing following on the job accidents to determine whether an intoxication defense may be used under Section 11 of the Illinois Workers’ Compensation Act.  The Act provides that if an employee refuses to submit to drug or alcohol testing, it creates a rebuttable presumption that the intoxication was the proximate cause of the accident. What happens, though, when an employee refuses to submit to the drug or alcohol testing?  The Seventh Circuit addressed this issue in Phillips v. Continental Tire The Americas , 743 F.3d 475 (7th Cir. 2014).  In Phillips , an employee was terminated after he refused to take a required drug test.  The employee had filed a workers’ compensation claim, so h...

There is arguably nothing more frustrating for an employer than finding out that a former employee has been bashing your business. It is even worse if that employee is spreading lies, and doing so through social media, where misinformation can spread faster than Ebola. What should an employer do in this situation? One solution is to require departing employees to sign a non-disparagement agreement. A non-disparagement agreement forbids a departing employee from engaging in actions that harm the reputation of the employer, its products, services, or personnel. These are frequently part of separation agreements. In fact, in order for a non-disparagement agreement to be enforceable, the employer must provide the employee with some benefit, like money or healthcare, in return for signing the agreement. While non-disparagement agreements are popular, their effectiveness is questionable at best. First of all, it is often difficult to prove in court that an ex-employee actually made the n...

Employees end up being terminated in one of two ways. Either they do something so terrible that they are summarily dismissed. More commonly, an employee just regularly underperforms or engages in a series of lower level misconduct until one day it’s the last straw. The employee is late one more time, or makes the same mistake again, and the employer becomes fed up and decides it’s time to end the relationship. We always harp about documenting employee misconduct or poor performance. When the employer has that last straw moment with consistently poor performance or misconduct, documentation of past performance or conduct problems is important, but the strength of the documentation is equally if not more important. So, what exactly is good documentation that supports a defense to any later claims? 1. Objectively Articulate the Employee’s Problem:  It’s just not enough to say “Sarah doesn’t pay attention to detail.” It’s better to say “Sarah has again failed to catch errors in h...

Last week, we reported on the intoxication defense under Section 11 of the Illinois Workers’ Compensation Act, which creates a rebuttable presumption that the employee’s intoxication is the proximate cause of the injury when the employee refuses to submit to testing.  We recommended that employers review their post-accident testing policies to be sure that their policies encompass all workplace injuries.   In addition to the Section 11 intoxication defense, employers should be aware of other statutes that can help cut down on the risk of fraud. OSHA allows employers to require injured workers to undergo a prompt medical exam, contemporaneous with the injury.  OSHA states that there must not be a change in the workers’ condition, so due to this short window of time for the examination to be done, it is advisable to schedule the exam at the same time the injury is reported.  OSHA also allows employers to pay for second medical opinions under the recordkeeping require...

It seems like it has become standard practice for an employer to ask a departing employee to sign a non-compete agreement. With the increasing use of email, cell phones, and social media, it is cheaper and easier than ever for an employee to compete against his former employer. As a result, employers frequently seek out non-compete agreements to protect their livelihoods. A non-compete agreement is a contract between an employer and employee in which the employee promises that, upon leaving the employer, he will not compete with it. For example, under a typical non-compete agreement, an employee will promise to refrain from engaging in the same business as the employer within the geographic area in which the employee operates for a certain period of time, usually two or three years. Employers have good reason to require departing employees to sign non-compete agreements: they have invested time, effort, and money into obtaining clients, and do not want to risk losing these clients to d...

In a move that was not surprising to most, a Sangamon County judge ruled last Friday that the pension reform bill enacted just about a year ago is unconstitutional. Most people by now know that Illinois tops the list of states with the worst funded state pension programs in the nation. In fact, it is the condition of the state pension programs that has virtually brought the state to its knees, resulting in not only a lowered credit rating, but also the ouster of Pat Quinn as Governor and the election of unknown Republican Bruce Rauner to that office with the voters hoping that if he made himself millions, maybe he can save the state from this mess. Unions argued that the currently declared unconstitutional pension legislation deprived public employees of the full benefit of their “contract” with the state because they entered public service with the promise of pension benefits that were subsequently reduced by the legislation. This all, argued the labor unions, violates the state c...

Earlier this week in Widmar v. Sun Chemical Corp. , the Seventh Circuit Court of Appeals ruled in favor of the employer in an age discrimination lawsuit filed by manager terminated for poor performance. Plaintiff, George Widmar, worked as a plant manager for Sun Chemical for 16 years and was terminated just before he turned 52.  Widmar oversaw the manufacturing process at two plants.  Widmar attempted to prove that he was terminated based on his age in violation of the Age Discrimination in Employment Act. Widmar did not present any direct evidence of discrimination. Rather, he relied on the indirect method of proof for establishing discrimination articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). Under the indirect method of proof, a plaintiff has the burden of establishing a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he met the employer’s legitimate business expectations; (3) he suffered an a...