The Workplace Report with Ancel Glink

Chicagoans will debate endlessly over who has the best deep dish pizza in town. My vote has always been for Giordano’s, so if I were to work a job where I received Giordano’s pizza during every shift, it would seem like a dream come true (although it would probably be a nightmare for my waistline). Christina Monson didn’t see it this way. Monson was an employee at a Giordano’s in Oak Park, IL, a suburb of Chicago. The Giordano’s franchise was owned by Marie’s Best Pizza, which offered its employees the opportunity to enroll in a program where they would be given a meal during each shift in exchange for $0.25 being deducted from their hourly wage. Monson, who had enrolled in this program, alleged in a class action lawsuit that it violated the Illinois Minimum Wage Law and Illinois Wage Payment and Collection Act. She claimed that it violated the Minimum Wage Law, which requires employers to pay wages of $8.25 an hour, because the $0.25 deduction brought wages below $8.25 an hour. She...

The Illinois Appellate court recently gave employers a refresher course in the pros and cons of maintaining at-will status of employees. In Taylor v. Board of Education of the City of Chicago, 10 N.E.3d 383, 2014 Ill. App. (1st) 123744, Plaintiff was an assistant principal at an elementary school in the District, selected to serve in that capacity by the newly appointed principal at that school. Plaintiff relinquished his tenure status to take the position. According to Board of Education rules, the assistant principal is appointed for the same four year term as the principal. At the end of the four years, the assistant principal can either be retained for another term or replaced. Board rules also state that assistant principals are subject to discipline for cause and shall be notified in writing and afforded a hearing prior to discipline. The rules also incorporate a mandatory progressive disciplinary procedure. Plaintiff sued the District after he was not retained in his position...

Employers are legally responsible to maintain a workplace that is free of sexual harassment. No employer can afford to allow any kind of sexual harassment to exist in the workplace.  The consequences are too costly including poor employee morale, low productivity and, of course, lawsuits with the threat of huge money damages awards. Employers should, at a minimum, take the following steps: 1. Publish a written policy on sexual harassment and actually implement it.  If a policy exists, review it for compliance with EEOC guidelines and good human resource practices.  Any policy must at least: Define sexual harassment and identify, by example, the prohibited conduct; Contain a reporting procedure which provides two or more people to whom a complaint can be made, particularly if one of the named individuals is the harasser.  If persons of both sexes are named, an employee cannot argue that he/she was uncomfortable talking to a person of the opposite sex. Advise e...

In 2008 the U.S. Department of Labor issued new guidance on the use of unpaid interns in the private sector.  The guidance provided a six part test to determine whether or not the internship qualifies as an educational exception to the wage payment laws.  Failing the six part test causes an internship to be subject to pay for time spent in the program. Many public employers have raised concerns regarding the continued use of unpaid interns or volunteers in the public sector.  A recent case from the United States Second Circuit Court of Appeals provides guidance and reassurance for public employers. In Brown v. New York City Department of Education No. 13-139-cv decided June 18, 2014 the court applied the public sector volunteer exemption in the Fair Labor Standards Act to award summary judgment to New York City and deny an intern’s claim for pay under the Act. Mr. Brown, a recent high school graduate, worked for three years as a volunteer at a New York City high sc...

Looking to start a business? Stay in the South and West in states like Texas, Utah, and Colorado. Avoid Northeastern states like Rhode Island, Connecticut, and Pennsylvania. And God forbid starting a business in Illinois or California. At least that is the conclusion put forth in the third annual Thumbtack.com Small Business Friendliness Survey , conducted by the Kaufmann Foundation , a think tank, and Thumbtack.com , a website that helps businesses find customers. The report asked over 12,000 small business owners from across the country about the ease of starting a business, hiring and firing, complying with the local tax code, obtaining licenses, and complying with environmental and zoning regulations in their home state. The small business owners gave their state a letter grade between A and F. Texas, Idaho, Utah, and Virginia received A+ grades. Illinois, California, and Rhode Island received an F. The friendliness of professional licensing requirements was the most important is...

In an ideal world, injured employees will be able to return to their regular job, full duty, with no recurrence of the issues that lead to their disability.  However, in reality, things often do not go so smoothly. Employers often ask us whether they can refuse to return an employee to work because of an increased risk of re-injury or because of potential increased worker's compensation costs.  In short, the answer is no, an employer cannot refuse to return an employee to work just because of the risk of re-injury or additional costs.  The only exception is where the employer can show that employment of the person poses a "direct threat" to the health and safety of other individuals in the workplace.   Otherwise, such a refusal would constitute discrimination on the basis of disability. Where applicable, it is always best for the employer to provide light or modified duty work to a disabled employee.  According to ADA and EEOC guidance, providing a light dut...

As a follow up to our an earlier post on this case, last Friday, a federal judge dismissed the lawsuit by the Equal Employment Opportunity Commission (EEOC) against CVS over the drugstore’s severance agreements. The EEOC, which enforces laws against discrimination in the workplace, alleged that the severance agreements routinely used by CVS illegally restricted its employees’ right to file discrimination charges with the EEOC.   This case has been closely watched, as many employers use separation agreements similar to those used by CVS. In fact, in its motion to dismiss, CVS argued that its separation agreement contained garden-variety provisions that other companies have used for years without EEOC challenge. The EEOC, as seen in its complaint , took issue with several provisions routinely used by employers, including: CVS’s cooperation clause, which required an employee to notify CVS’s general counsel if the employee received any contacts relating to an administrative inves...

In Weaving v. City of Hillsboro , a police sergeant brought suit against the city following his termination for interpersonal problems.  The city had conducted an internal investigation, which found that the sergeant created a hostile work environment for his coworkers and employees. The sergeant alleged that his behavior was caused by his ADHD, which he claimed substantially limited his ability to work and interact with others.   He alleged that the termination was a violation of the ADA, as it was based on his ADHD disability. The jury found in favor of the sergeant, and the district court upheld that verdict.  On appeal, the Ninth Circuit reversed, holding that as a matter of law, the ADHD did not substantially limit the officer’s ability to work or interact with others under the ADA.  The Ninth Circuit found that the sergeant failed to produce evidence that his ADHD affected his ability to work, noting strong evidence of his technical competence as a sergeant...

More reps, less weight. Personal trainers are increasingly encouraging weight lifters to follow this advice in order to avoid injury. A Lake in the Hills police officer understands this better than most. The officer was participating in an annual physical fitness test that the Lake in the Hills Police Department requires each officer to complete. While the officers were required to maintain a bench press that was at a minimum in the 40th percentile of their age/sex group, the department provided bonuses to officers who could lift more. The unfortunate officer attempted to bench press an amount that would have put him in the 80th percentile for his age/sex group. In the middle of the exercise, however, he felt his shoulder “give out.” He was eventually diagnosed with a torn rotator cuff, and after an unsuccessful surgery, became disabled by this injury. The Illinois Pension Code provides a disability retirement pension to officers injured performing an “act of duty.” The officer claim...

Fans of the television show Mad Men can see most of the show’s characters virtually chain smoking in the office throughout the workday. Skip ahead 50 years and those characters might be vaping instead. The use of electronic cigarettes, also referred to as “vaping”, has become a progressively more popular and controversial trend among smokers and nonsmokers alike. Electronic cigarettes are intended to look and to be used in the same way as traditional cigarettes.  Electronic cigarettes work by vaporizing a liquid nicotine mixture obtained naturally from tobacco plants.  The user, also called “vaper”, inhales this nicotine mixture, just as a traditional smoker inhaling from a cigarette would, however without a traditional cigarette’s fire, ash, smell, or tar. Potential health risks of electronic cigarettes are still uncertain. The Surgeon General's office has categorized electronic cigarettes as "tobacco products."   Yet supporters claim that electronic cigarettes are ...

A recent decision from the Seventh Circuit Court of Appeals provides a good example of how employers should respond to complaints of harassment.  In Muhammad v. Caterpillar, Inc. decided on September 9, 2014, the plaintiff, Warnether Muhammad, alleged that his co-workers at  Caterpillar, Inc. created a hostile work environment by subjecting him to sexual and racial harassment.  Specifically, the plaintiff claimed that he was harassed with offensive comments and graffiti in the bathroom about his perceived sexual orientation and his race. Importantly, the Seventh Circuit rejected the employee’s claim outright based on the evidence that Caterpillar reasonably responded to Muhammad’s complaint, relying on its earlier decision in Berry v. Chicago Transit Authority , 618 F. 3d 688 (7th Cir. 2010) (explaining that the employer cannot be liable if it “took prompt action that was reasonably likely to prevent a reoccurrence.”)  After Muhammad reported to Caterpillar his co...

This week we’ve shared our top ten tips to avoid employment liability. Again, we stress that employers cannot prevent employees and would-be employees from filing claims against them. All employers can do is operate in a way that makes their actions defensible. Here are our final two tips: 8.  Evaluate Employees Regularly and Accurately This seems simple. The major hurdle that employers face is that for a variety of reasons many supervisors have trouble evaluating their staff accurately.  We have heard it explained to us that a supervisor doesn’t want to demoralize an employee so they inflate the evaluation to maintain good morale and to encourage employees with positive reinforcement rather than criticism. The only problem is that when discipline or some sort of adverse action is necessary the employee’s work record won’t support it. A fairly common example of this is the employee who is chronically tardy or absent. At some point the supervisor becomes exasperated with th...

This week, we have been posting ten tips to help employers avoid liability in employment litigation. Any employee or candidate for employment can file a claim; employers can’t stop that. What employers can do is “employ defensively” so that they can successfully defend claims and avoid liability. Here are more of our tips. 7.  Know Your FMLA Rights Certainly employees have rights under FMLA. So do employers. Below are important employer rights as well: a.  Initially, determine if your agency or company is covered by FMLA. We have previously talked about a common misconception that all government entities must provide FMLA leave, regardless of size. In fact, any employer, private or public, must only provide FMLA leave to qualifying employees only if the employer employs 50 or more employees in a 75 mile radius. b.  Employers have the right to inquire of an employee’s health care provider to clarify relevant health care information. c.  An employee who quali...

This week we are addressing ten employment practices that help employers avoid liability on employment claims. Wage and discrimination claims continue to increase. While nothing can prevent an employee or applicant from filing a claim, best practices in the workplace can reduce an employer’s risk of ultimate liability, and maybe the number of overall claims. As we cautioned yesterday, “employ defensively”. Here are more of the top ten practices to help employers avoid liability: 5.  Update IT and Social Media Policies. An employer that hasn’t reviewed and updated its IT and social media policies in a few years is essentially an employer who has a litigation time bomb ticking. This is a constantly changing area of employment law for two reasons. First, the world of information technology and social media is ever changing. Secondly, the law moves a great deal slower than the changes in technology. A few years short years ago employers were regulating the way that employees talk...

Yesterday we posted three of the top ten practices to avoid employment liability. We noted that while there is no way to stop employees or applicants from making claims of unfair employment practices, employers can work to reduce those claims and “employ defensively” so that they are in the best position possible to defend such claims and avoid liability. We continue our list today with the following. 4.  Pay Your Employees Correctly Wage claims can be very expensive. Not only does the employer pay its own attorney’s fees, but if found liable, the employer can pay damages in the amount of double the wages owed, interest on the unpaid amount and the employee’s attorney’s fees. Further, the Fair Labor Standards Act is a “strict liability” statute, meaning that an employer’s good faith or “honest mistake” is no defense to liability. This should be a huge incentive for any employer to ensure that they’re paying their employees correctly. Wage liability generally arises in two way...

The headline today refers to avoiding employment liability, which is not the same as avoiding employment litigation. Unfortunately for employers their employees are still suing them at record breaking rates. Candidates who don’t get the job, and employees who are disciplined or discharged often refuse to accept responsibility for those decisions. Some candidates cannot believe that they are not the most qualified. Many employees believe that discipline is unfair. Admittedly, sometimes their suspicions are correct but far more often they just look for a reason to blame the employer. Employers must act defensively. The best way to avoid problems down the road is for employers to periodically review their employment practices to ensure that even if a disgruntled employee (or candidate) makes a charge of unfair employment practices, they can prevail in the end. Here are the first three: 1.  Have an Updated Personnel Manual With the proper disclaimers that an employee handbook is ...

Contrary to the trend in recent years to exclude IT personnel from union participation because of their access to information stored on the employer’s network, the Appellate Court recently reversed a Labor Board decision to exclude an assistant information analyst in the State’s Treasurer’s Office from bargaining unit membership, reasoning that access alone was not enough to meet the exclusion test. In   AFSCME v. ILRB and Treasurer’s Office of the State of Illinois , 2014 IL App (1st) 132455, 2014 WL 3352044, The Treasurer’s Office filed a unit clarification petition to exclude the position of Information System Analyst II (an assistant information system analyst) because the position allowed the employee access to all network information which included budget and other information relative to bargaining strategies for the employer. Under the Illinois Public Labor Relations Act there are two tests specifically designated in the statutory definition to determine whether a positio...

According to recent Public Access Counselor (PAC) and court opinions, reports of internal investigations of alleged public employee misconduct are subject to public disclosure pursuant to the Freedom of Information Act. In a binding opinion, (Public Access Opinion 13-011) the PAC addressed whether or not internal investigative reports concerning employee misconduct by the assistant police chief were exempt from disclosure under section 7(1)(n) of the Freedom of Information Act. Section 7(1)(n) exempts from disclosure records “relating to a public body’s adjudication of employee grievances or disciplinary cases; however this exemption shall not extend to the final outcome of cases in which discipline is imposed.”  The City of Bloomington argued that its investigative records were exempt as records relating to a public body’s adjudication of an employee’s disciplinary case. In this particular case, the assistant chief was involved in a traffic accident. The city asserted that an info...

Governor Pat Quinn has signed new legislation which significantly increases the rights of pregnant women in the workplace.  The new legislation includes pregnancy as a protected status under the Illinois Human Rights Act.  This new legislation also further expands rights already provided by the federal Pregnancy Discrimination Act. The new Illinois law makes it a civil rights violation to fail to provide pregnant women with reasonable accommodations upon request.  Employers will now bear the burden of demonstrating an “undue hardship” on the ordinary operation of the business of the employer if they choose to deny a pregnant employee’s request for reasonable accommodation.  The Act does allow the employer to request documentation from the employee’s medical provider to determine the need for the requested accommodation to the same extent that such documentation may be requested in the case of other disabilities provided that the request is job related and consisten...

A recent Ninth Circuit ruling allows employees to decline FMLA leave, even when they have an FMLA-qualifying reason for taking the leave. The Ninth Circuit’s holding in Escriba v. Foster Poultry Farms, Inc. gives employees greater flexibility when taking FMLA leave, allowing them to potentially take far longer than the typical 12 weeks of leave afforded by the Act. Maria Escriba sought a two week vacation to care for her ailing father in Guatemala. While she told her employer about the FMLA-qualifying reason for her leave, she expressly requested that the time away be counted against her vacation days, and not be considered FMLA leave. After two weeks, Escriba failed to return to work, and she was fired. Escriba argued that this violated the FMLA, as she informed her employer of her FMLA-qualifying reason for leave, and therefore was entitled to the full 12 weeks off provided by the Act. Her employer argued that since she had expressly declined to take FMLA leave, she was not enti...