The Workplace Report with Ancel Glink

Authored by Julie Tappendorf and originally appeared in the Municipal Minute with Ancel Glink. You can read the Municipal Minute at http://municipalminute.ancelglink.com/ . In June, we posted about a trial court decision that invalidated the City of Crystal Lake's tax levy ordinance. The trial court had ruled that the 3-2 vote of the City Council to approve the tax levy was insufficient because state statute requires four affirmative votes to pass an ordinance. As a result of the invalidation of the tax levy, the court ordered the City to refund the City portion of the property taxes due and paid in 2014 to the taxpayers.   Taxpayers Get Refund Because of 3-2 Vote on Tax Levy Ordinance. The City appealed, and last week the appellate court reversed the trial court, holding that home rule voting procedures prevailed over the general voting provisions set forth in state statute. WKS Crystal Lake v. LeFew, 2015 IL App(2d) 150544 .  The tax objectors had argued that ...

Over the past few years, one of the biggest political issues affecting employers has been the effort to raise the minimum wage . Momentum behind raising the minimum wage has continued to build, and a number of states, cities, and counties have increased their minimum wage in recent years. Notable examples include Seattle, which raised its minimum wage to $11/hr in 2015 and will raise it to $15/hr in 2017, as well as San Francisco, which raised its minimum wage to $12.25/hr in 2015 and will raise it to $15/hr in 2018. On January 1, 2016, 13 states will raise their minimum wage (see chart below). Currently, the federal minimum wage is $7.25/hr, but states, along with some cities and counties, have the right to increase it within their borders. Illinois will not be among the states increasing its minimum wage in 2016. The minimum wage in Illinois is currently $8.25/hr for employees over 18 and $7.75/hr for employees under 18.  There has been some talk of raising the minimum wag...

The “Cadillac Tax” was born as a part of the Affordable Care Act (“ACA”), which is really kind of funny.  The whole idea behind it was that a tax on “rich” health insurance plans would help less wealthy individuals afford insurance on the exchanges. Employers, many of whom can really ill afford the “Cadillac” insurance plans that they have for their employees, but are more or less stuck with them because the employees’ unions won’t agree to less expensive plans, have been dreading the introduction of this tax since the ACA became effective.  This week, employers received a holiday gift from the federal government in the form of a two year reprieve on this tax. Both houses have now approved a spending bill that would delay the implementation of the Cadillac Tax until January 1, 2020.   The Cadillac Tax provides for a 40% excise tax on employer provided health plans that exceed a value of $10,200 annually for individuals and $27,500 annually for all plans other than ...

One of the most difficult scenarios any business could face is how to deal with a customer or client who is acting inappropriately. On the one hand, most companies have zero tolerance policies regarding harassment in the workplace. On the other hand, a business cannot exist without customers. A business who reprimands its customers may find itself without any pretty soon. What is a business to do? Lessons can be learned from Costco, which recently found itself in such a position. One of its employees has been engaged in a lawsuit against the company, claiming that it maintained a hostile workplace because it permitted a customer to harass her. The employee alleged that a male customer consistently visited Costco while she was working and would make comments to her that made her feel uncomfortable. The customer allegedly made references to stalking, and commented that she “looked scared” when he approached her.  After the employee complained to the store managers about the...

Earlier this week, the Department of Justice announced that it settled a federal lawsuit filed against the Chicago Board of Education alleging pregnancy discrimination against teachers. The lawsuit alleged a pattern of discrimination against pregnant teachers that resulted in the women receiving lower performance evaluations and threats of termination.  The lawsuit stems from complaints filed with the Equal Employment Opportunity Commission by a group of teachers at Scammon Elementary School in Chicago. The teachers alleged that from 2009 until 2012, the Principal took actions to oust eight teachers who became pregnant or returned to work after their pregnancies.   According to the settlement terms, the employer must pay $280,000 in back pay and compensatory damages to the teachers.  In addition, the Board of Education agreed to change its personnel policies to protect against discrimination based on gender and pregnancy.  The Board also agreed to establis...

The Village of Lincolnshire, a suburb northwest of Chicago, is the first to enact a right to work zone in Illinois. The ordinance allows private sector employees to opt out of union membership and forego payment of fair share dues. As many readers know, fair share fees or dues is a percentage of full union dues assessed against an individual who occupies a job title represented by a union, but who chooses not to be a union member. The fair share dues or fees are supposed to reimburse the union for the benefit to the individual derived from union representation despite the fact that they have declined membership. Fair share often exceeds 90% of full membership union dues among public sector employees. Rauner established the concept of right to work zones in Illinois in his Turnaround Agenda. He called them "employee empowerment zones" and said they'd give people more local control of their lives. Attorney General Madigan previously rendered an opinion on these zon...

Last week the District Court for the Northern District of Illinois ruled in favor of the City of Chicago in the long time pending claim of about 50 Chicago Police officers and sergeants that the City violated the FLSA by not paying them for time spent responding to messages received on their Department issued BlackBerrys. The fact that this involves BlackBerrys give some indication of how long this lawsuit has been pending.  At issue was the Plaintiffs’ claim that they routinely received email messages while they were off duty on their BlackBerrys to which they were expected to respond. They also claimed that an unwritten policy existed in the Department that officers did not ask for overtime for this kind of work off duty.  In support of their argument, Plaintiffs offered a 2010 general order (issued after the suit was filed, but assumedly documented a previous unwritten policy) which stated that the BlackBerrys were issued for the convenience of the officers and tha...

Employers may want to think twice about firing an employee who habitually sleeps on the job. The City of McPherson, Kansas, found that out the hard way. The City was recently ordered to pay a police officer it fired for sleeping on the job $1 million. A jury found that the City’s firing of the habitually napping officer was a violation of the Americans with Disabilities Act , and that the officer was entitled to $1 million worth of compensation for this violation.  The officer claimed that he suffered from sleep apnea, a sleeping disorder that makes it difficult to sleep throughout the night. The officer claimed that his inability to sleep well at night caused him to fall asleep repeatedly throughout the work day. The officer eventually received treatment for his sleep apnea and stopped falling asleep at work. However, the City fired him because it claimed he was insubordinate and argued with superiors.  In its termination memo, the City referenced the officer’s hab...

Employers all agree that intermittent FMLA leave is one of the most frustrating policies to effectively monitor. In fact, many employers view intermittent FMLA as a virtual free pass for employees to take off at their whim. While it is true that intermittent FMLA creates a great deal of room for employee abuse, employees who place a premium on work and life balance, including the ability to remain active contributors at work while addressing their own or their family member’s medical needs, increasingly turn to the FMLA.  But, what about the employees who use their intermittent FMLA leave because they just don’t want to regularly report to work? Here are five ways to prevent FMLA abuse. 1. Require a complete and timely submission of a physician’s certification of the employee’s own serious medical condition of that of the employee’s family member. This may seem like a no-brainer, but sometimes going back to basics will help prevent abuse.  Many employers give the empl...

Covenants not to compete are common terms of employment in the private sector.  When an employee is to be given access to an employer’s trade secrets or client lists, or is expected to perform other valuable services for the employer, an employer often will require the employee to sign, usually at hire, a non-compete agreement as a condition of employment.  To be enforceable, a non-compete agreement must be limited in time and geographical scope, but a properly constructed non-compete agreement will restrict the employee’s ability to take the knowledge he has gained from working for the employer and put it to immediate use in the service of a competitor.  But what happens if the employer decides he wants the employee to sign a non-c ompete agreement during the term of the employee’s employment, even though the employee was not required to sign such an agreement when he was hired?   Recently, in Socko v. Mid-Atlantic Systems of CPA, Inc. , 142 MAP 2015 (Nov. 18,...

Under U.S. Department of Labor regulations, a meal period may be unpaid if the affected employee is “completely relieved of duty for the purposes of eating regular meals…. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.”  29 C.F.R. § 785.19(a).  Employers adhering to this regulation have always presumed that, if a meal period were interrupted in any way, the employee would have to be paid for the meal period.   In Babcock v. Butler County , No. 14-1467 (November 24, 2015), the U.S. Court of Appeals for the Third Circuit rejected this standard in favor of a less restrictive “predominant benefit” test.  While the test is fact-intensive, the essence of the test is that if the meal period is predominantly for the benefit of the employee, the meal period time may be uncompensated, whereas if the meal period is predominantly for the benefit of the employer, the meal period must be paid.  According ...

The EEOC recently released a publication discussing how to accommodate HIV-positive employees. The publication is directed toward health care providers, but it provides a lot of useful information for employers as well, and I recommend that employers or those in HR take a look at it. As I have discussed , advances in HIV medications now allow HIV-positive individuals to live longer, healthier, and more productive lives than was thought possible even a decade ago. Due to the decline in the AIDS mortality rate , a greater number of Americans than ever are now HIV-positive. This increases the likelihood that you may have an HIV-positive person in your workplace.  The EEOC publication discusses how an employer can accommodate such an employee. The Americans with Disabilities Act requires employers to make “reasonable accommodations” to disabled employees, which includes those employees with HIV. A reasonable accommodation is a change in the way things are normally done to permit...

In a recent decision in Smith v. Chicago Transit Authority , the Seventh Circuit Court of Appeals upheld judgment against employee who sued in federal court. Smith alleged that the Chicago Transit Authority (“CTA”) fired him because of his race in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981.  The CTA said it fired Smith because he violated its policy against sexual harassment. Smith held the position of Transportation Manager and was assigned to the Bus Services Management unit. The CTA has a policy, like most employers, prohibiting sexual harassment in the workplace, including “unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” when the conduct “has the effect of creating an intimidating, hostile or offensive work environment.” On November 6, 2006, a bus operator, Marcella McCall reported that on October 28 Smith asked her to perform a striptease for his wife and to join hi...

Originally posted by Julie Tappendorf on Municipal Minute at  http://municipalminute.ancelglink.com In another installment of "be careful what you post on social media," today's post involves a Minnesota judge who was reprimanded for posting online about his trials.  Here are a couple of examples of his posts: In August of 2014, he posted on his Facebook page: My day yesterday in the Hennepin County District Court in Minneapolis: . . . Criminal Vehicular Homicide where defendant stoned on Xanax supplemented it w/a lot of booze and then drove wrong way down a freeway colliding w/an innocent citizen driving the right way down the same freeway killing him. . . . and most interesting -- three kidnappings . . . where the three were physically tortured to try and find the drugs. In July, 2015, he posted the following after the defense counsel had an apparent panic attack and was taken away by ambulance: Now we are in chaos because defendant has to hire a ne...

Aside from the obvious reasons to be terrified of the coming year (a presidential election where all of the candidates, regardless of your party affiliation, are frightening; global terrorism; economic uncertainty – no real need to continue because if this doesn’t send you running for cover, nothing will) employers also need to be very concerned about the Department of Labor’s proposed changes to the so called “white collar” exemption regulations and the fact that the popularity of FLSA cases with the plaintiff’s bar continues to rise. Employers were put on notice that changes to the DOL regulations governing the “white collar” exemptions (generally “executive”, “administrative” and “professional”) to the FLSA’s overtime requirements were imminent by the end of 2015.  We recently learned that the proposed rule changes would not be implemented until 2016, likely in the middle or latter part of the year.  While the delay gives employers additional time to prepare, it should...

“Obesity has more than doubled in children and quadrupled in adolescents in the past 30 years,” reports the Centers for Disease Control . Indeed, while the rates of other diseases like cancer, heart disease, or HIV have stayed roughly the same or even decreased over the past three decades, rates of obesity have skyrocketed. The CDC now estimates that more than one-third of American adults are obese. With obesity rates so high, it is likely that someone you work with suffers from obesity.  Obesity raises a series of health risks . Obese people may have difficulty walking, going up stairs, or performing other tasks that might be necessary in the workplace. Which raises the question: is obesity a disability covered by the Americans with Disabilities Act (ADA)?  The ADA prohibits discrimination against employees who are disabled. An employee is considered disabled if he or she: Has a physical or mental condition that substantially limits a major life activity; H...

Last June we reported on what seemed to be a somewhat surprising decision by the NLRB against Cooper Tire & Rubber Company when it fired an employee for making racist comments on the picket line. As readers may recall, the discharged employee, a Caucasian worker, was participating in a lawful picket outside of the employer’s facility. As a group of African American replacement workers drove by, the employee yelled derisive comments at the workers about  “fried chicken and watermelon.”  Cooper Tire fired the employee for engaging in discriminatory conduct. The employee and his union grieved his discharge, which was upheld by an arbitrator. The union and the employee then filed an unfair labor practice with the NLRB alleging that Cooper Tire interfered with his Section 7 rights to engage in concerted protected activity. The judge's ruling, in favor of the employee, was based on a series of NLRB decisions protecting the rights of picketing workers, including a 2006 decision ...

The EEOC recently announced that it brought in a record $525 million of monetary awards in 2015. The EEOC is a federal agency that enforces federal labor laws that protect workers from discrimination. Among the laws that the EEOC enforces are Title VII of the 1964 Civil Rights Act, the Pregnancy Discrimination Act , the Age Discrimination in Employment Act , and the Americans with Disabilities Act.  The EEOC’s $525 million haul is a marked increase from the $390 million it received in 2014. The EEOC brought in this money through lawsuits, mediation, and settlements with employers it accused of violating federal employment laws. Its record haul is due in large part to its aggressive enforcement of these laws. “There is a growing awareness—across racial and ethnic lines—that we must do more as a country to address issues of equality,” the EEOC’s chairperson said in a statement. Indeed, over the last few years, the EEOC has markedly increased the number of lawsuits and legal proc...

Jingle bells, jingle bells, a lawsuit on its way!  Alcohol, colleagues, and those holiday work parties are the perfect ingredients for unwanted employer liability and litigation. Personal injury and sexual harassment claims are merely examples of what might arise from a holiday work party.   Alcohol is often a staple at  holiday parties, but; an employer’s liability as a result of overindulgence may depend on whether attendance at the party is mandatory.  In Stephenson v. Universal Metrics, Inc. , a motorist’s estate attempted to hold an employer liable after its employee became drunk at a work-sponsored function and, on his way home, killed both himself and another motorist. Luckily for the employer, the Wisconsin Supreme Court held the employer was immune from liability under Wis. Stat. § 125.035.  Stephenson v. Universal Metrics, Inc. , 2002 WI 30, ¶ 11, 251 Wis. 2d 171, 185, 641 N.W.2d 158, 162.  Similarly, in Sayles v. Piccadilly Cafeterias, Inc ....