The Workplace Report with Ancel Glink

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...

In City of Danville , Case No. S-DR-15-003 (September 4, 2014), Illinois Labor Relations Board General Counsel Jerald Post issued a declaratory ruling that clarifies the distinction between mandatory and permissive subjects of bargaining in collective bargaining with firefighter units.  Section 14(i) of the Illinois Public Labor Relations Act (“the Act”) precludes a firefighter union from taking to impasse and thus to interest arbitration proposals specifying “the type of equipment (other than uniforms and fire fighter turnout gear) issued or used” or “the total number of employees employed by the department.”  Notwithstanding that preclusive language, the Illinois Appellate Court ruled in Village of Oak Lawn v. Illinois Labor Relations Board, State Panel , 2011 IL App. (1st) 103417 that the Act does not bar a firefighter union from taking to impasse a minimum manning proposal that incidentally affects the total number of employees employed by the department.  The extent...

In 2012, then Indiana Governor Mitch Daniels, a Republican, signed legislation that made Indiana a right to work state – meaning that workers in union shops were neither required to join the union or pay fair share dues. Since that time both the International Union of Operating Engineers Local 150 and the Steelworker’s Union each filed suits to declare the legislation unconstitutional on the grounds that it deprived unions pay for their work (unions contend that fair share dues pay them for the benefits that a union provides an employee who is covered by a collective bargaining agreement even if he or she doesn’t choose to be a union member). Two of the three suits were filed in state court and one was filed in federal court. Earlier this year, the Seventh Circuit held that the legislation was not unconstitutional while the state court judges found the opposite to be true. Just last week the Indiana Supreme Court reversed the lower court finding and held in accord with the Seventh Ci...

Readers of The Workplace Report know that we strongly encourage all employers to create and enforce sexual harassment policies. Sexual harassment is one of the most common complaints of employment discrimination in the workplace; the EEOC and related state agencies consistently receive over 12,000 complaints of sexual harassment a year. Employers must protect themselves by taking proactive measures to prevent sexual harassment in the workplace, and that starts with creating and enforcing a comprehensive sexual harassment policy. However, when creating a sexual harassment policy, don’t forget that sexual harassment is not limited to a man making unwelcome sexual advances toward a woman. Sexual harassment between people of the same gender is also illegal. Courts holds that sexual harassment occurs when: 1) an employee is subjected to unwelcome harassment; 2) the harassment is of a sexual nature or based on an employee’s gender; 3) the harassment is severe and pervasive, creating a h...

If you take a stroll on Northwestern University’s campus tonight, you might expect to find some underage students drinking alcohol. What you might not expect to find, however, is a religious organization serving large quantities of alcohol to underage students. Yet, this is what happened, many times, at the Tannenbaum Chabad House, a Jewish religious organization located on Northwestern’s campus. Apparently, alcohol was distributed by the rabbis at Tannenbaum to underage students regularly on weekend nights. Parties became so rambunxious that, on one occasion, a student had to be hospitalized for excessive alcohol consumption. After several warnings, Northwestern finally cut off all of its affiliation with Tannenbaum in 2012. As a result, the rabbi in charge of Tannenbaum sued the University , claiming that the University’s decision to disaffiliate was due to anti-Semitism. The rabbi claimed that the University’s decision violated 42 U.S.C. § 1981, which forbids discrimination “on th...

The 2011 amendments to Illinois Compensation Act were so sweeping that some changes have been more frequently discussed than others.  One of the most often ignored changes was the addition of an intoxication defense to Section 11.  Under the amended Section 11, employees will not be entitled to compensation if their intoxication was the proximate cause of the accidental injury, or if at the time of the accident, the employee was so intoxicated that it constituted a departure from the employment.   The Act then went even further to state that if the employee refuses to submit to testing of blood, breath, or urine, a rebuttable presumption is raised that the employee is intoxicated and that the intoxication was the proximate cause of the injury. In light of this rebuttable presumption, we recommend that employers review their personnel manuals and post-accident testing policies.  Employers will want be sure that the provisions encompass all workplace injuries. ...

Can a company commit an unfair labor practice by restricting use of its email to only business communications? That’s the question before the NLRB in the case of Purple Communications, Inc. and Communication Workers of America . Purple Communications maintains a policy, which among other things, prohibits personal use of  its email system by employees. Many employers can certainly sympathize with this decision. Limiting email use to business purposes only greatly reduces the risk of viruses and spam, not to mention it tends to keep employees more focused on their work. During the course of a union organizing campaign at two Purple Communications locations, the issue of whether employees could communicate via email about their employee issues arose. The union claimed that the email policy prohibiting any personal emails was overly broad and intrusive and claimed that it amounted to an unfair labor practice in that it unlawfully restrained employees’ concerted activities and camp...

The Age Discrimination in Employment Act (ADEA) probably covers more people in the workplace than any other law. Therefore, both employers and employees should have a basic understanding of this important piece of legislation. Passed in 1967, the ADEA prohibits an employer from taking negative action against an employee because of that employee’s age. The law only applies to those 40 and older; therefore, a 25-year old could not bring a lawsuit under the ADEA claiming discrimination based on his youth. The ADEA seeks to prohibit employers from making false assumptions about an employee due to that employee’s age. Therefore, statements like, “We don’t hire employees over 55 years old,” will almost certainly violate the Act. Courts apply the Act broadly, prohibiting age discrimination against an employee or prospective employee in hiring, firing, promotions, layoffs, pay, or anything else affecting the workplace. This means that, in most cases, mandatory retirement policies or deni...

For a long time it was considered a given that an essential function of any job was that the employee had to be able to show up for work. If a disabled employee could not report to work, then no reasonable accommodation was available and the employer’s responsibilities under the ADA were discharged. Maybe not so any longer. Recently, the Sixth Circuit reversed a District Court grant of summary judgment in favor of the defendant Employer, Ford Motors, in an ADA action by one of its employees on the basis that the company did not explore the option of telecommuting for plaintiff.  In that case, EEOC v. Ford Motor Co, the plaintiff was a resale buyer who suffered from severe irritable bowel syndrome. A resale buyer essentially acts as an intermediary between suppliers and the company to ensure that the company has sufficient steel for its parts manufacturers. Plaintiff found it nearly impossible to report to work every day because of her IBS. She exhausted her FMLA leave as...

The Internal Revenue Service (IRS) recently issued its new limits for 2015 on employee contributions to FSA’s and HSA’s. IRS issued Revenue Procedure 2014-30 provides the 2015 inflation adjusted contribution, deductible, and out-of-pocket spending limits for Health Savings Accounts (HSA) as follows: For self-only coverage: The annual contribution limits may not exceed $3,350 The annual deductible must be at least $1,300 The annual out-of-pocket limits may not exceed $6,450 For family coverage: The annual contribution limits may not exceed $6,650 The annual deductible must be at least $2,600 The annual out-of-pocket limits may not exceed $12,900 The annual dollar limit on employee contributions to employer-sponsored health care Flexible Spending Accounts (FSAs) rises to $2,550 in 2015, up from $2,500 in 2014.  As of 2014 the IRS began allowing employers to choose between a 90 day grace period on FSA spending or a $500.00 rollover. Other contribution limits rema...

The Seventh Circuit Court of Appeals had occasion to review First Amendment protections in the workplace in the case of Meade v. Moraine Valley Community College decided late last week. In August, 2013, Robin Meade, an adjunct professor, wrote a letter to the League of Innovation in the Community College about her employer, Moraine Valley Community College. The letter leveled multiple charges at the college concerning its poor treatment of adjuncts.  Plaintiff charged that certain practices harmed Moraine Valley’s students. She signed the letter in her capacity as president of the Moraine Valley Adjunct Faculty Organization, a union representing the college adjunct faculty. Two days later, Moraine Valley fired Meade expressly stating in a written notice that her letter was the reason for its action. Meade filed a federal lawsuit under 42 U.S.C. Section 1983 alleging that Moraine Valley retaliated against her for exercising her right to freedom of speech and violated her due pr...

What do you do about the employee who comes to work sick? The coughing and sneezing is not only making everyone else in the workplace cringe and rub sanitizing lotion on their hands, but if everyone catches this virus, how will the work get done? Employers struggle with how to manage their workforce during cold and flu season. On the one hand, employers typically encourage good attendance and praise the dedication of employees who come to work even though they feel under the weather. On the other hand, nobody wants to be around someone with a bad cold or flu; aside from the fact that colds and flu are very contagious. For every “trooper” who works through an illness, many more will stay home until fully recuperated. It’s Okay to Send a Sick Employee Home First of all, employers have the obligation through state and federal regulation and often by collective bargaining agreement, to provide a safe work environment. This can include contagious disease. In order to protect the safet...

In 1978 , Congress passed the landmark Pregnancy Discrimination Act (PDA). The Act has served as an important means of ensuring equality in the workplace, and has helped facilitate the entry of women into the workforce. Due in part to the PDA, pregnant women now make up a sizable portion of the workforce . As a result, every employer should be familiar with the PDA, and know the protections it imposes on pregnant women and the duties it imposes on employers. Below, I have outlined some of the important features of the Act, and provided some suggestions as to how employers can comply. The PDA is a federal statute which amended Title VII of the Civil Rights Act of 1964 to "prohibit sex discrimination on the basis of pregnancy." It applies to all employers with at least 15 employees, and requires employers to treat women affected by pregnancy, childbirth, or “other related medical conditions” the same for all employment-related purposes. This includes the receipt of fringe be...

The NLRB said enough is enough to two seasonal employees of a not-for-profit youth organization in San Francisco.  Last week, it upheld an administrative law judge’s dismissal of a complaint against the Richmond District Neighborhood Center when is failed to rehire two seasonal employees. The employees had previously met with their supervisor to share comments and criticisms about the organization. Later, two of the employees, Moore and Callaghan, exchanged critical comments about the Center on Facebook, including the following: Moore: I’m goin’ to be a activity leader I’m not doing the t.c. let them figure it out and they start loosin' kids I ain’t help'n HAHA Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like being their bitch and making it all happy-friendly middle school ...