The Workplace Report with Ancel Glink

In Regions Bank v. Joyce Meyer Ministries, Inc. , 2014 Ill. App. (5th) 130193, the Appellate Court for the Fifth District held that an Illinois employer may be liable for failing to investigate an employee’s e-mail threats to murder his family made from his work computer. On May 5, 2009, Sheri Coleman and her two sons (the decedents) were murdered in their home in Columbia, Illinois.  Christopher Coleman, the husband of Sheri and the father of the boys, was charged with and subsequently convicted of the murders.  At the time of the murders, Christopher Coleman had been employed in high-level security positions by Joyce Meyer Ministries, Inc. (JMM).  It was alleged that in the months leading up to the murders, Coleman used his work computer to email death threats directed at himself, the decedents, and Joyce Meyer Ministries, Inc. During the period of Coleman’s employment, JMM enacted an electronic communications policy (E-Comm Policy) which governed its employees’ use...

It is generally understood that employers are not required to assign essential job functions to other employees as a means of accommodating an ADA qualified employee (Basith v. Cook County, 241 F 3d 919 7th Circuit 2001) . The Seventh Circuit Court of Appeals recently indicated however that an employer may need to make minor adjustments in the work duties of other employees in order to enable a disabled employee to perform central job functions. The court cited to the EEOC Enforcement Guidance: Reasonable Accommodation and Undue hardship under the Americans with Disabilities Act. The Guidance lists job restructuring as one of the accommodations an employer must consider. In Kauffman v. Petersen Health Care VII, No. 13-3661 ,decided October 16, 2014 the Plaintiff was a hairdresser at a nursing home. As part of her duties, she wheeled residents from their rooms to the nursing home’s beauty shop. The Plaintiff suffered a prolapsed bladder and as a result could no longer push or lift a...

This past Thursday, a Michigan court of appeals found that employees with medical marijuana cards under the Michigan Medical Marihuana Act (MMMA), terminated for failing a drug test, are still eligible for unemployment benefits.  The decision came about after three different employees were fired by their respective employer after failing a drug test.  The three different appeals were consolidated into one case. The first concerned Rick Braska, who worked for Challenge Manufacturing Company (“Challenge”) as a material handler/hi-lo operator since 2009. In May 2010, Braska obtained a medical marijuana card to treat his chronic back pain.  Challenge was unaware of Braska’s status as a medical marijuana cardholder.  When he became injured in June 2010, he was sent to a medical center where he failed a mandatory drug test and first identified himself as a medical marijuana cardholder.  Braska’s failed drug test was a violation of Challenge’s drug-free workplace pol...

It is difficult to think of legislation passed over the past twenty-five years that has affected the workplace more than the Americans with Disabilities Act (ADA). Passed in 1990, and amended in 2008, the ADA prohibits discrimination against a person because of a disability. This applies to private employers with fifteen or more employees, as well as federal, state, and local governments. The ADA prohibits an employer from discriminating against “a qualified individual with a disability.” A person is considered disabled if he has a physical or mental impairment that substantially limits a major life activity. This includes serious physical and mental handicaps, like paralysis, missing limbs, lack of hearing or vision, speech impediments, or cognitive disabilities. It also includes illnesses, like cancer, HIV, or multiple sclerosis. Mental illnesses, like bipolar disorder, depression, and schizophrenia are covered as well. A disability does not have to be permanent; temporary impairment...

Is it religious discrimination if an employee doesn’t tell her employer that she requires an accommodation? This is one of the questions that the Supreme Court will address this term in a batch of employment cases that it will hear. In EEOC v. Abercrombie and Fitch, Samantha Elauf applied for a position as a sales clerk at an Abercrombie store (the company calls sales clerks “models”). One requirement of employment is that applicants have to be willing to wear what the company calls “the look”, which is to essentially dress like the clothes that are sold in the store. Some prohibitions also exist, like wearing heavy makeup, nail polish, black clothing and wearing caps. According to Abercrombie, if an applicant requests a clothing accommodation for religious or other reasons, the interviewer is required to immediately refer the issue to Human Resources or a designated supervisor who will address the issue. Ms. Elauf is a practicing Muslim who wears a hijab (headscarf). Before inte...

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.  The ADEA’s protections apply to both employees and job applicants.  Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, lay-off, compensation, benefits, job assignments, and training.  The ADEA applies to employers with 20 or more employees, including state and local governments.  It also applies to employment agencies and labor organizations, as well as to the federal government. Recently, in   Baker v. Macon Resources,Inc. , 750 F.3d 674 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit reversed the grant of summary judgment for the employer in an age discrimination case.  The Court found that the employer treated a younger employee more le...

Not surprisingly, there is quite a bit of confusion over the calculation of measurement and stability periods under the Patient Protection and Affordable Care Act (“the ACA”).  With 2015 on the doorstep, it is useful to clarify (or at least attempt to clarify) some rules that may have been misunderstood. First, measurement and stability periods should not be used for ongoing employees whom the employer expects to work full-time.  Rather, they should be used only for variable hour, part-time and seasonal employees whose full-time status is genuinely in doubt – i.e. , for employees who may or may not work an average of 130 hours per month over the applicable measurement period. Second, there are different measurement and stability rules for ongoing and newly-hired employees.  For ongoing employees, there is a standard measurement period of 3 to 12 months followed by a stability period that is the longer of six months or the length of the standard measurement period. ...

Increasingly, employers find themselves accused of violating the provisions of the Fair Labor Standards Act (“FLSA”) regarding the payment of overtime wages.  The FLSA provides that employers must pay overtime (time and one half the regular hourly rate of pay) for all hours worked in excess of 40 hours per work week.  This rule does not apply to employees who are “exempt” from the requirements of the FLSA.  The main reason that plaintiffs’ attorneys find these types of cases attractive is that the FLSA provides for attorney’s fees in these types of cases. Employers have to decide if their employees are “non-exempt” (from the requirements of the FLSA) or “exempt.”  There are four types of “exempt” employees.  They are executive, administrative, professional and outside sales employees.  For the purposes of this article, we are only focusing on the executive, administrative and professional exemptions.  In addition, for the purposes of this article, we...

If you have spent any time reading The Workplace Report, you have probably noticed that a number of our articles deal with the Family and Medical Leave Act, or FMLA. The FMLA has come to be a frequent source of employment litigation and continues to be one of the areas where we receive a number of questions. Therefore, having a basic familiarity with the FMLA is essential for both employers and employees. Below, we have provided an overview of the important law, with a particular focus on the areas that often create problems between employees and employers. The FMLA, enacted in 1993, requires most employers to provide employees up to 12 weeks of unpaid leave for medical or family emergencies. Specifically, the FMLA applies to all employers with at least 50 employees, as well as all to federal, state, and local governments. All employees who have worked for the employer for at least 12 months or 1,250 hours are covered by the Act. Some family or medical emergencies that entitle an empl...

The Workplace Report has in the past referred to 2014 as the year for pregnancy protections. The EEOC issued its Guidance on pregnancy discrimination, expanding protections to eligible workers to that provided under the ADA. The State of Illinois followed suit with its own legislation protecting pregnant workers. Now the Supreme Court will take up the subject.  The Court will hear the case of Young v. UPS ,  707 F.3d 437, cert granted 134 S.Ct. 2898 (U.S. 2014),  in which the plaintiff worked at UPS handling packages which required her to regularly lift a fair amount of weight. After she became pregnant, her doctor restricted her to lifting no more than 20 pounds. The company had a policy which allowed for light duty assignments for employees who sustained on duty injuries. Plaintiff asked for a light duty assignment and was denied it by the company. She sued claiming pregnancy and ADA discrimination. UPS won summary judgment which was upheld by the Fourth Circuit. The S...

The Americans with Disabilities Act (“ADA”) requires covered employers to provide effective “reasonable accommodations” to employees with disabilities.  Employers are required to engage in an “interactive process” with employees to determine effective reasonable accommodations.   Cloe v. City of Indianapolis , 712 F.3d 1171 (7th Cir. 2013).  The Cloe case illustrates for employers that if a given accommodation is no longer effective, the employer is required to re-engage in the interactive process with employee and explore alternative accommodations. The Cloe case involved an ADA claim filed by a worker against the City of Indianapolis after she was terminated for poor performance.  During Cloe’s employment, she was diagnosed with Multiple Sclerosis which made it difficult for her to walk.  Her doctors requested that she be provided nearby parking to accommodate her condition. Cloe filed a federal lawsuit claiming that the City had failed to accommodate her ...

Sometimes employees, even those high up in the organization, say things that come back to haunt the employer in the form of lawsuits.  Thorough documentation of the basis for employment decisions can sometimes overcome a statement from a supervisor that seems to be  smoking gun evidence of discrimination. Earlier this year, the Seventh Circuit held that a Village was not liable for racial discrimination when it did not promote either of  two Caucasian police sergeants to a Deputy Chief vacancy even though they were both eligible for promotion and despite evidence that the police chief told them that neither would receive the promotion because they were the “wrong color”. In Garafalo v. Village of Hazel Crest 754 F.3d 428 the Seventh Circuit upheld summary judgment in favor of defendants because the Village was able to show that it had legitimate non-pretextual reasons for selecting another candidate.  The Village showed evidence that one sergeant lacked leadershi...

As we reported a couple of weeks ago, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against CVS over the separation agreements the drugstore offered to its discharged employees. The agreements required the discharged employees to agree not to sue CVS, make disparaging remarks about the company, or disclose confidential information as a condition of receiving severance pay. These types of separation agreements are routinely used by employers, so the EEOC’s suit was closely watched by HR departments around the country, worried that the EEOC would come after them next. Therefore, when a federal court dismissed the EEOC’s suit against CVS, it appeared as though employers won a solid victory. Except, when the court finally issued a written opinion explaining why the suit was dismissed, it became clear that employers did not really win a victory. Luckily, they weren’t defeated either: the court simply did not reach the merits of the case. The court did not decide wh...

On Wednesday, October 8, the U.S. Supreme Court heard oral arguments in the case Integrity Staffing Solutions, Inc. v. Busk ,. In this case, the Supreme Court is reviewing a decision in which the Ninth Circuit ruled that employers, under the Fair Labor Standards Act (FLSA) and Portal-to-Portal Act, must compensate employees for the time spent in security screenings at the end of their shifts. The company in this case is a warehousing firm that provides storage space and order fulfillment for companies that sell their products online, such as Amazon.com.  The plaintiffs include Amazon warehouse workers who allege that they are required to undergo theft screening after they finish their shift and before they leave for the day. Plaintiffs assert that they have had to wait up to 25 minutes for this mandatory theft screening, for which they should be compensated. The Ninth Circuit’s holding in Busk represents a departure from the case law established in other circuits, including o...

Collective bargaining over health insurance has become more complicated in light of the phased-in implementation of the Patient Protection and Affordable Care Act (the “ACA”) and the fact that some labor unions are placing increasing emphasis in bargaining on securing the agreement of employers to agree to replace employer-provided insurance coverage with union-administered Taft-Hartley insurance plans.  The Administrative Law Judge’s Recommended Decision and Order in International Union of Operating Engineers Local 150 and County of Lee , ILRB Case No. S-CA-11-157 (issued as non-precedential by the ILRB on Aug. 13, 2014), provides guidance on pitfalls to avoid in conducting such negotiations. In County of Lee , the Union placed a priority on convincing the County to accept the Union’s health insurance plan for public works employees represented by the Union.  The County was willing to listen, but wanted to know if the Union would agree to cover all employees, including thos...

Last week the EEOC filed suit against an employer for violating the Americans with Disabilities Act (“ADA”) for penalizing employees for non-participation in health screenings and requiring employees to disclose their medical history in the employer mandated wellness program which were not related to their duties or assignments for the company. In its suit, the EEOC alleged that the plaintiff, an employee of Flambeau, Inc., in Baraboo, Wisconsin, was hospitalized with a heart condition at the time that his employer mandated that all employees receiving employer sponsored health insurance undergo biometric testing and a health risk assessment as part of their wellness program. Part of the biometric testing and risk assessment, required employees to, among other things, undergo tests and disclose medical history that would reveal conditions covered by the ADA that were not job related. Moreover, the employer had a policy that any employee who did not undergo the evaluation would lose t...

After receiving one of his first paychecks in the NBA, Shaquille O’Neal famously looked at the check and remarked: “ Who the hell is FICA ? When I meet him, I'm going to punch him in the face.” After a recent Supreme Court decision, many laid-off workers from Quality Stores, a large retailer that went bankrupt, probably feel the same way. These laid-off workers might look to punch FICA in the face because the Supreme Court, in United States v. Quality Stores, Inc .,  held that FICA taxes must be taken out of the severance packages they received after being laid off. FICA (which stands for “Federal Insurance Contribution Act”) is a payroll tax used to fund Social Security and Medicare. 15.3% of an employee’s gross compensation is claimed by FICA, with employees responsible for 6.2%, and employers responsible for the remaining 9.1%. FICA taxes only must be paid on wages, and only on the first $117,000 an individual earns. Upon going bust, Quality Stores provided its employees wit...

It seems to be the year for pregnancy. Both the EEOC and the state legislature have issued new interpretations and protections this year to guard against pregnancy discrimination in the workplace. Previous posts on the Workplace Report have offered advice to employers on implementing workplace rules and policies to remain in compliance with expanded protections for pregnant, about to become pregnant, and recently pregnant workers. The recently issued EEOC Guidance on the Pregnancy Discrimination Act offers these less obvious points to also remember about pregnancy protections: ▪ There is such a thing as being too nice. Sometimes when employers act in a way that they believe is deferential towards a pregnant worker (or a woman who has recently given birth), it can backfire. Here is an example:  A pregnant employee is normally assigned to counter duty in the police records department. Her job is to stand much of the day and assist the public in obtaining copies of police records a...

The Seventh Circuit Court of Appeals in Garofalo v. Village of Hazel Crest affirmed summary judgment in favor of the employer in a Title VII  employment discrimination lawsuit filed in federal court by two white police sergeants passed over for promotion to Deputy Chief of Police. Plaintiffs, Garofalo and Peers, were among four front-runners considered for a Deputy Police Chief position, which ultimately went to a black officer who was not one of the four initially-discussed candidates.  Plaintiffs alleged that the Village and its officials discriminated against them by promoting a black officer they contended was unqualified for the position.  Plaintiffs sued the Village under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Sections 1981, 1983, as well as under Illinois state law. Plaintiffs alleged that the Village and its officials discriminated against them by failing to promote them based on their race. Plaintiffs also alleged that management created a ho...

In July of this year, Governor Quinn signed into law amendments to the Illinois Municipal Code and the Fire Protection District Act that require written (“mental aptitude”) examinations given to applicants for firefighter positions to be “supported by appropriate validation evidence and [to] comply with all applicable state and federal laws”.  Specifically, the law provides, “[m]inimum scores should be set by the [appointing authority, either the Board of Fire and Police Commissioners, the Board of Fire Commissioners, the Civil Service Commission or the Illinois Joint Labor and Management Committee] so as to demonstrate a candidate’s ability to perform the essential functions of the job.  The minimum score set by the [appointing authority] shall be supported by appropriate validation evidence and shall comply with all applicable state and federal laws.” This month, fire chiefs around the state have received letters from the Attorney General’s office notifying them of the cha...

Workers compensation laws are designed to remove fault from employee injury claims in exchange for a monetary cap on an employer’s liability. Recently, the Illinois Appellate Court Fifth District (Dale v. South Central Illinois Mass Transit District, 2014 Ill.App.5th 130361) considered whether the Workers Compensation Act cap on liability applied in a retaliatory discharge action. The court held that an employee retaliatory discharge claim for lost wages may be limited by the Workers Compensation Act. The employee plaintiff, Richard William Dale, worked as a bus driver for the defendant, South Central Illinois Mass Transit District. Dale injured his shoulder in a work-related accident. He subsequently filed a claim under the Illinois Workers Compensation Act. South Central granted Dale twelve weeks of leave under the Family Medical Leave Act. When his twelve week leave period expired, South Central terminated Dale because he was medically unable to return to work. Dale filed a claim ...