The Workplace Report with Ancel Glink

Under section seven of the National Labor Relations Act, concerted employee activity is considered protected activity. Employers may not discipline employees for engaging in protected activity, whether or not the employees are members of a union. Nor may employers have policies in place that chill an employee from engaging in such activities. Section seven of the National Labor Relations Act states in part: employees shall have the right to self organization to form, join, or assist labor organizations…and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Traditional concerted activities include: (1) Meeting and discussing terms and conditions of employment for the purpose of organizing a labor union. (2) Taking job action to protest an unsafe working condition. (3) Speaking with the employer on behalf of one or more coworkers about working conditions. Generally, personal gripes about working conditions are not protect...

Minimum staffing has long been a hot button issue for Illinois Fire Unions and their members.  Minimum manning requires that an employer have a certain number of firefighters on a shift.  If the number falls below the agreed upon minimum, then the employer is forced to pay overtime to ensure that the minimum number of firefighters are on duty.  With vacation days, sick days and Kelly days, the task of maintaining minimum manning is a daunting one for employers. The longstanding question regarding minimum staffing issues for firefighters has been whether or not municipalities are required to bargain over minimum staffing.  Fire Union’s have maintained since the holding in Village of Oak Law v. Illinois Labor Relations Board, State Panel , 964 N.E.2d 1132 (1st Dist. 2011) where the court found that the Illinois Public Labor Relations Act did not exclude staffing levels from interest arbitration and that minimum staffing is a mandatory subject of bargaining in all fir...

Beginning with the 2015 calendar year, the Patient Protection and Affordable Care Act (ACA) will impose reporting requirements on employers.  One such requirement will apply to all employers, regardless of size, who provide health insurance coverage to their employees.  Another requirement will apply to all large employers (employers who employ 50 or more full-time-equivalent (fte) employees), regardless of whether or not they provide health insurance coverage to employees.  Many employers have had questions about what kind of information they are required to report, who is to report it, and how it is to be reported.  Recently, the Internal Revenue Service (IRS) released some draft forms to give employers at least an idea as to what they (or their insurance carriers or self-insurance plan administrators) will be required to report.  These forms are available on the IRS web site. The reporting requirements are annual.  Information returns must be filed by ...

Being a teacher is tough. Between unruly students, angry parents, and seemingly unceasing budget cuts, teachers have enough to keep them awake at night. Thankfully, being sued might not be among them. A recent case out of the Fifth Circuit, Morgan v. Swanson , was a major victory for teachers and school officials. In that case, an elementary school in Texas had an in-school party during the holiday season. A parent and his son brought candy canes as gifts for the students. The candy canes, however, had a religious message attached to them. When the school’s principal saw the religious message, she told the parent and his son that they could not distribute them. The principal explained that the school had a policy against distributing materials with religious messages. The father and son sued the principal, alleging that she had violated their First Amendment rights. And the Fifth Circuit agreed. However, they held that the principal had immunity from the lawsuit because the law regar...

A three year gap in an employee's complaint and a subsequent negative employment action does not automatically preclude a finding of causation according to the 7th Circuit Court of Appeals.  An employee can use events that have fallen outside of the statute of limitations as evidence to establish a pattern of retaliation the Court held,  in reversing the district court’s award of summary judgment in Malin v. Hospira, Inc. , No. 13-2433 (7th Cir. August 7, 2014).. Plaintiff, Malin, began working for Abbott Laboratories’ Information Technology (IT) department in April 1996.  In 2003 she complained of workplace sexual harassment.  Immediately prior to the filing of the harassment claim, Malin’s ultimate supervisor, Carlin, was informed of Malin’s intent on filing the complaint.  According to Malin, Carlin became angry and attempted to prevent her from filing the harassment claim with the Human Resources Department.  In 2004, both Malin and Carlin were among ...

The Seventh Circuit Court of Appeals recently affirmed a District Court’s finding that it is reasonable both for an employer to require an employee to work a specific schedule and fire him if he won’t work it. In Huang v. Continental Casualty Co . 754 F.3d 447 (7th Cir. 2014) the court found that the plaintiff was discharged for refusing to work Saturdays because of family obligations and not because, as he claimed, he is Chinese and had complained about workplace issues. Beginning in August 2007, Plaintiff, Huang, repeatedly refused to work the weekend hours that CNA assigned him for pager duty, citing family obligations.  Huang persisted in his refusal even after his supervisor and Human Resources reminded him that pager duty is a work requirement, equally shared by all team members, and told him that CNA could fire him for refusing it.  In response, Huang offered to work from the office on Sundays in exchange for having Monday’s off, but refused to carry a pager and remai...

Three recent lawsuits filed against employers by the U.S. Equal Employment Opportunity Commission (EEOC) underscore the importance of having a labor and employment lawyer review and approve release language in settlement agreements.  Such language is a necessary part of settlement agreements designed to resolve employment issues, including those relating to potential charges of discrimination, arising out of employer decisions to terminate employees for performance reasons or because of reorganizations or reductions in force.  The position taken by the EEOC in these lawsuits makes it very clear that simply recycling release language from prior settlement agreements is a serious mistake. The EEOC’s litigation position arises out of its Strategic Enforcement Plan (SEP) for Fiscal Years 2013 to 2016.  The main focus of the SEP is systemic discrimination in the workplace, and one of the primary objectives of the enforcement plan is to preserve access to the legal system. ...

Yesterday we wrote about the problems that have and can arise when employees date their co-workers. Today we’re reporting on a case where an employee went beyond dating and used his position to obtain sexual favors from prospective employees.  All employers should take notice of a recent 7th Circuit Court of Appeals decision that reminds us that what we don’t know about who we are hiring can be bad.   In the case of Wilson v. Cook County, 742 F.3d 775 (7th Cir. 2014), Oak Forest Hospital learned how problematic it is to hire an employee without doing any background checks.  Unfortunately in this instance for Oak Forest Hospital, an employee was assigned to work there by the County which funds and operates the hospital.   The employee, Phil Vanaria, a long time County employee, was placed at the Hospital as a coordinator of continuing education programs for physicians and staff. What the hospital did not know in this case was that Vanaria had been fired from a jo...

Many people hope to find a special someone to share their life with, however, before asking out that cute co-worker, you may want to read this recent case from Massachusetts. In Pierce v. Cotuit Fire Department , practically the entire fire department dated one another at one point. In a complex web of romance, the captain of the department was married to another firefighter in the department. Prior to this marriage, the captain had dated a different firefighter. This firefighter later married another firefighter, who, in turn, used to be married to another firefighter in the department. Amazingly, there were only sixteen firefighters in the Cotuit Fire Department. The problems started when the captain was inevitably accused of displaying favoritism towards his wife. This prompted the fire department board to create a new familial relations policy forbidding firefighters from supervising family members or working regular shifts with them. After further conflict with a co-worker embr...

Awaiting action by the Governor is HB 4157 which defines the term intern for the first time in Illinois statutes.  The bill amends the Illinois Human Rights Act to cover interns under the Act. In doing so, the amendment defines an unpaid intern as follows: (1) "Employee" includes: (a) Any individual performing services for remuneration within this State for an employer; (b) An apprentice; (c) An applicant for any apprenticeship. For purposes of subsection (D) of Section 2-102 of this Act, "employee" also includes an unpaid intern. An unpaid intern is a person who performs work for an employer under the following circumstances: (i) the employer is not committed to hiring the person performing the work at the conclusion of the intern's tenure; (ii) the employer and the person performing the work agree that the person is not entitled to wages for the work performed; and (iii) the work performed: (I) supplements training given in an educational environ...

What steps do employers need to take to be sure they don’t get strangled by a litigation hold? Courts have proclaimed that an employer’s obligation to preserve potentially relevant evidence extends to eletronically-stored information. This includes an employee’s e-mail communications made on a work e-mail account.  When is the obligation to preserve this evidence triggered? Courts now say it begins as soon as an employer receives notice of  EEOC or IDHR charge of discrimination. Employers must know that litigation holds have assumed a level of importance in civil litigation. This reality warrants very careful attention from the employer and their counsel involved in defending employment discrimination claims.  A litigation hold requires the employer to take steps to ensure the preservation of  potentially relevant documents and electronically-stored information  (“ESI”)  evidence in anticipation of future litigation. The type of evidence which may be...

In Village of Posen, Illinois v. Illinois Fraternal Order of Police Labor Council , No. 1-13-3329 (Aug. 11, 2014), the Illinois Appellate Court, First District upheld an arbitration award finding that a police officer was not discharged for just cause because he accepted both regular salary payments under the Public Employee Disability Act (PEDA), 5 ILCS/0.01, et seq., and workers’ compensation payments for the same time periods.  The decision is notable for a number of reasons. First, it alerts public employers to the need for monitoring of PEDA and workers’ compensation payments to insure compliance with law.  The statute provides that, while a police officer or firefighter is receiving PEDA payments, workers’ compensation payments during that time revert to the public employer.  The employer in this case apparently did not have in place an adequate procedure for insuring compliance with that statutory directive. Second, the decision underscores the need for a good ...

Thinking about slashing salaries? Make sure that your employment agreements allow you to increase and decrease employee salaries. The Town of Straford, CT found this out the hard way. The Town required each employee to sign an employment agreement which stated: “[A]t the [m]ayor’s sole discretion and recommendation, [an employee’s] base salary may be increased on July 1 of each fiscal year.” After the Town attempted to decrease an employee’s salary, the employee sued, claiming that the employment agreement forbid the town from doing this. The court agreed . It noted that by specifically mentioning salary increases and not mentioning decreases, the employment agreement forbade the employer from reducing salaries. This reasoning illustrates a principle that courts use to interpret contracts: the inclusion of one thing implies the exclusion of others. The more specific a grant of discretion, the more limited courts interpret that discretion to be—otherwise, it would be pointless to b...

To streamline efficiency and save money, many employers would like to eliminate issuing “live” payroll checks altogether. And, while many employees enjoy the immediate availability of their paycheck through direct deposit, some employees don’t have bank accounts leaving employers with no option but to issue “live” payroll checks which employees would cash and then risk loss or theft of their pay. Effective January 1, 2015, employers will have the option of paying their employees with a payroll card. P.A. 98-862 amends the Illinois Wage Payment and Collection Act by providing that employers, with the employee’s agreement, can pay wages by way of a payroll card.  Essentially a debit card, payroll cards can potentially eliminate the need to run live payroll for employees. The amendments include several requirements for employers in order to lawfully use payroll cards, the most fundamental of which is that payment of wages via payroll card cannot be a condition of employment or a con...

Many smaller local governmental entities believe that they are obligated to provide FMLA leave to their employees even though they have fewer than 50 employees in a 75 mile area. 
Smaller public agencies, some with fewer than even five employees, experience the difficulty in serving their community with an employee on leave for this extended period of time. While the federal government has done a pretty good job of confusing office holders and managers alike on this subject, public agencies (including local governmental agencies) with fewer than 50 employees in a 75 mile area are not required to provide FMLA leave for their employees. The confusion centers around the regulations adopted for the Family Medical Leave Act. In particular, 29 CFR 825.108 states as follows: (a) An employer under FMLA includes any public agency… It then states as follows: (d) …[a]ll public agencies are covered by the FMLA regardless of the number of employees; they are not subject to the coverag...

Welcome to the launch of The Workplace Report with Ancel Glink! This blog is designed to provide readers with breaking news, insights, and legal analysis on important labor and employment  issues. Check in with us each day to stay current in what affects your workplace. This blog is a must read for anyone interested in staying current on legal issues in the workplace.

As many employers are discovering, the Affordable Care Act (aka Obamacare) puts many new requirements on employers. One new requirement that you might have overlooked, however, has to do with COBRA notices. Employers with 20 or more employees are required to notify employees and anyone else covered under their health insurance plans within 45 days of a qualifying event (i.e. loss of job, reduction in hours, divorce, loss of dependent child status) of their eligibility for COBRA benefits. What many employers don’t know, however, is that the ACA changed what must be included in this notice. The ACA now requires COBRA notices to state that those who qualify for COBRA also have the option to purchase coverage on state or federal exchanges, and that coverage on these exchanges may be cheaper than through COBRA. The Department of Labor issued two revised model COBRA notices to help employers comply with these requirements. The Model General COBRA Notice includes new instructions for adm...

Public Act 98-0774 known as the Job Opportunities for Qualified Applicants Act (effective January 1, 2015) prohibits private employers (employing 15 or more employees) from considering or requiring the disclosure of an applicant’s criminal record until: 1) it is determined the applicant is qualified for a position and 2) the applicant is selected for an interview. If no interview is held then no inquiry or disclosure of criminal history may be made until a conditional offer of employment is made by the employer. The new act is not applied to the following situations: 1) public employers; 2) positions where state or federal law requires disqualification based on criminal convictions; 3) emergency medical services employees; and 4) where a fidelity bond or a similar bond is required for a position and a criminal conviction may prevent the issuance of a bond. Notwithstanding the Job Opportunities for Qualified Applicants Act all employers, public and private, should be aware of p...

Employers beware! That foul-mouthed employee hurling curse words at you may be exercising his rights under the National Labor Relations Act (NLRA), and firing him may land you in a world of trouble. The owner of a used car-dealership in Yuma, Arizona found this out the hard way . During a meeting with an employee, the employee called his boss a “f***ing mother *f***ing,” a “f***ing crook,” and an “a**hole.” Pushing a chair, the employee told the owner that nobody liked him and that he was stupid. Unsurprisingly, the owner fired this employee. Perhaps also unsurprisingly, the employee sued the owner, alleging that he was fired for exercising rights protected by the NLRA. The employee alleged that his rights under Section 7 of the NLRA, which allows employees to air grievances against their employers and prevents employers from retaliating against them, were violated. The owner responded that the employee’s behavior was “menacing,” “belligerent,” and “physically aggressive.” The NLRA f...