The Workplace Report with Ancel Glink

As discussed in related articles in the Workplace Report, the “Ban the Box” law effective January 1, 2015, prohibits prescreening a job applicant’s criminal history.  However, the Act does not prohibit an employer from basing employment decisions in part on an applicant’s criminal history.  Nevertheless, employers should be aware that the Equal Employment Opportunity Commission (EEOC) has issued specific guidance on this issue. In the Guidance, the EEOC explains that federal law does not prohibit employers from asking a potential candidate for employment about prior criminal history.  However, the EEOC, building on its existing case law, suggests that an employer’s use of criminal history in hiring decisions may under certain circumstances violate Title VII of the Civil Rights Act of 1964, as amended. Title VII prohibits employers from using policies or practices that screen individuals based upon criminal history information if those policies have a disparate impact up...

With courts seeming to suddenly acknowledge the validity of same sex marriage and striking down prohibitions based on sexual orientation, it brings to light other gender related issues in the workplace that were once either taboo or a source of discomfort to address. Transgender or gender expression is one topic that is receiving more attention in the workplace of late. Take the case of Jamal v. Saks Fifth Avenue for instance.  Leyth O. Jamal, a transgender woman working for the company, claimed that the retailer violated Title VII by allowing her to be exposed to a hostile work environment. Jamal claimed that she was harassed, belittled, forced to use the men’s restroom and that a manager suggested that she make her appearance more masculine and “separate her home life from work life”, among other things. Last month Saks responded by arguing that Title VII’s prohibition against gender discrimination did not extend to transgender workers and sought dismissal of the claim, desp...

Resolving a split among circuits, the U.S. Supreme Court ruled on Monday that unionized retirees cannot claim that their retiree health benefits vested at the time of retirement unless the collective bargaining agreement expressly states that. Last Monday, the court issued its much anticipated decision in M&G Polymers USA v. Tackett, et al . which many hoped would unify among the circuits the rule on vesting of retiree health benefits under collective bargaining agreements. The facts in M&G Polymers are very representative of the issues addressed in courts across the country.  Plaintiffs are retired union employees. At the time that they retired, a collective bargaining agreement was in place that provided, among other benefits, that retired union members would be eligible for health insurance that was paid for by the employer at varying levels depending on the employee’s years of service.  This contract provision remained essentially unchanged for a number of years...

Almost every employer will tell you that the worst part of their job is firing an employee. Unfortunately, economic slowdowns, employee underperformance, and overstaffing makes firing employees an inevitable part of running a business. However, there are ways that employers can transition employees without having to fire them. Using the alternatives listed below may avoid litigation, preserve employee morale and prevent the employer from the awkward conversation that results from terminating an employee. 1. Early Retirement If an employer needs to cut positions, offering early retirement packages may be the best way to do this. Older workers generally cost more to employ, so giving them an incentive to retire may lead to real savings. Also, providing severance packages to early retirees in exchange for signing an agreement not to sue the employer will decrease the risk of litigation. Employees who choose to retire early are less likely to file an employment discrimination lawsuit ...

Last Wednesday, Kmart settled a claim filed by EEOC on behalf of a Kmart applicant who was denied employment when he could not produce urine for a pre-employment drug screen. According to the EEOC's 2013 suit, after Kmart offered Lorenzo Cook an associate position at its Hyattsville, Md., store, he met with a hiring official to complete the pre-employment process. He told that manager that he could not produce a urine sample for a mandatory drug screen because he undergoes dialysis as a result of kidney failure. He volunteered to submit to a blood or hair test. About two weeks later, without discussing possible alternatives to the urinalysis, Cook was informed that Kmart's policy required all new hires to undertake a standard urine test.  The EEOC charged Kmart with an ADA violation for denying Cook employment because he could not complete the urinalysis. Kmart ended up settling the claim by agreeing to pay approximately $102,000 TO SOMEONE WHO NEVER EVEN WORKED FOR THEM. ...

Effective January 1, 2015, Illinois enacted the Job Opportunities For Qualified Applicants Act (the Act) which prohibits prescreening a job applicant’s criminal history. Prescreening Exceptions There are three exceptions to the prohibition against prescreening for an applicant’s criminal history.  First, that prohibition does not apply to employers who are required to exclude applicants with certain criminal convictions from employment due to federal or state law. Second, the prohibition does not apply to positions that require a standard fidelity bond, or an equivalent bond, and the applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond.  In this case, the employer may include a question or otherwise inquire whether the applicant has ever been convicted of any of those offenses. Third, the prohibition does not apply to employment of individuals under the Emergency Medical Services (EMS) Systems Act....

Yesterday we wrote about whether an employee can use FMLA to avoid mandatory overtime. The case of Santiago v. Department of Transportation addressed that issue, holding that it was proper for the plaintiff in that case, who suffered from cluster headaches, to request intermittent FMLA leave to avoid mandatory overtime in order to relieve stress of excessive work hours and thereby reduce the chances of getting headaches. Today we consider whether that same employer would have to grant this same relief as a reasonable accommodation under the ADA. First of all, we recognize that we are trying to compare apples and oranges here. But, frankly, when an employer has an employee with a chronic disability, it has to consider the whole fruit basket of obligations.(we also acknowledge that we might be straining that metaphor) One tricky question is whether an employer is obligated to relieve an employee with a disability from working certain schedules or number of hours, not because they are i...

Most employers know that they are required to grant intermittent leave to eligible and qualified employees. But what if that intermittent leave request is relief from overtime to avoid a health problem? Such was the case in Santiago v. Department of Transportation, et al .  Plaintiff worked in a position with the DOT that included mandatory overtime. He suffered from cluster headaches, which his doctor stated were exacerbated by excessive work hours. He requested intermittent FMLA leave to optimize his ability to reduce or avoid the cluster headaches (which, for those readers who don’t know, are sometimes referred to as “suicide headaches” because of the number of people who have committed suicide from the pain of these). The DOT refused that leave, for among other reasons, because plaintiff was not asking for the leave to recover from a qualifying health condition or to receive treatment, but only to avoid exacerbating his health condition. The court noted that FMLA is proper ...

Smart employers know that there are some jobs where the ability to work cohesively with co-workers is important. Other jobs call for workers with complementary skills. It’s that intangible quality that some call “fitting in” for lack of a better description. Unfortunately, the term is so vague that employees might also argue that “fitting in” is just another way to discriminate. In Abrams v. Dep't of Pub. Safety , an African-American police detective brought action against his employer, Department of Public Safety, for racial discrimination and retaliation.  The action arose after the employer failed to transfer Abrams to his preferred unit, a specialized, elite unit that investigates homicides and other serious crimes (the “Van”), and instead transferred him to the less desirable, Casino Unit. Abrams has been employed with the Department of Public Safety since 1986 and has been denied assignment to the Van since 1998.  Although he was made detective in Eastern District Ma...

In the United States, employers are under no legal obligation to provide employees with paid sick or maternity leave. President Obama wants to change that. Last week, the President urged Congress to pass the  Healthy Families Act , which would require employers to provide employees with paid sick leave. The President also granted six weeks of paid maternity leave to all federal employees, and urged Congress to pass a law requiring employers nationwide to do so. The Healthy Families Act was introduced into the House of Representatives nearly two years ago, but has languished due to Republican opposition. The Act would require employers with at least 15 part and full-time employees to provide them with 1 hour of paid sick leave for every 30 hours worked. Employees could earn up to a maximum of 56 hours of paid sick leave annually. The sick leave could be used to attend to the employee’s medical needs, the medical needs of close family members (including domestic partners), and to s...

In an interesting case out of the 8th Circuit (Arkansas) the Court of Appeals has found that a supervisor who squeezed his subordinate’s nipple and on another occasion took a towel from the employee, rubbed it on his crotch, and handed it back to the employee, did not engage in workplace harassment. In Rickard v. Swedish Match North America, Inc . No. 13-3729, the plaintiff, a male salesperson for the company, complained that his supervisor, Payne, acted in a crude and obnoxious fashion towards him and others. Rickard cited the incident wherein Payne, also a man, squeezed Rickard’s nipple and said “this is a form of sexual harassment”, as well as the towel incident, claiming that it evidenced sexual harassment. He complained to the company about the behavior, which Payne denied doing. Nevertheless, the company reprimanded the supervisor. After Rickard quit (allegedly over those incidents and his belief that he was also the subject of age discrimination), he sued the company. The 8...

As kids, snow days were an unexpected Get Out of Jail Free card. It’s pretty much the same for employees. When extreme weather or other potentially dangerous situations call for an employer to close the workplace or require only essential personnel to report, it’s reminiscent of a snow day when employees were kids – in part because employees believe they deserve pay for these days. But do employers have to pay their employees if they close the workplace? Only under the following circumstances: 1. If the employer has guarantees a certain number of hours of work to employees. This kind of agreement is usually found in a collective bargaining agreement or employment contract. If the employer has agreed to a certain number of hours of work each week, then the employer probably has to pay the employees when they’re told not to report. Otherwise, employees only are entitled to pay for the time that they actually work. 2. Exempt employees. A deduction in pay for “snow days” for exemp...

The arrival of 2015 also saw the arrival of perhaps the most controversial part of the Affordable Care Act (aka Obamacare): the employer mandate. The employer mandate requires employers with more than 100 employees to offer health insurance to all of their full-time employees (defined as those working more than 30 hours a week). Next year, the mandate will extend to employers with 50 or more full-time employees. Many employers chafe at the employer mandate, worried that it will prove ruinously expensive. To narrow the scope of the employer mandate, on January 6, the House of Representatives passed the “Hire More Heroes Act,” which would exempt veterans receiving health care through the U.S. military from being counted as full-time employees under the employer mandate. This means that if an employer has 51 employees, but two of them are veterans receiving health care through the U.S. military, only 49 employees would be counted for purposes of the employer mandate. The “Hire More Hero...

It’s almost always difficult for an employer to decide that an employee is just not an asset to the organization and should be discharged.  Change is difficult for everyone, including other staff, and employers these days are always wary of discrimination or wrongful discharge lawsuits. We always advise our clients, though, that they cannot be held hostage by poorly performing employees with the threat of a lawsuit. The trick is to be prepared and conduct the discharge in a manner that creates a veritable brick wall of a defense to later claims. Here are seven tips to that end: 1. Be thoughtful in your decision to discharge an employee. In other words, never knee-jerk a decision to discharge. Of course, some circumstances absolutely require an immediate action. An example is if you first hand witness an employee engage in egregious conduct in the workplace. If you don’t actually have first hand evidence of very bad behavior, it’s generally best to take action only after conduct...

Workplace bullying cannot be completely eliminated in today’s work world. However, employers can take certain steps to protect its employees from such behaviors. This ultimately benefits the employer making the workplace more safe and productive. Based on our experience in working with employers, we have identified the following best practices in this area. BEST PRACTICES FOR EMPLOYERS Develop a workplace anti-bullying policy and disseminate it to all employees; The anti-bullying policy should establish expectations of appropriate behavior and the consequences for failing to comply with expected behaviors; Use written acknowledgement to document that employee read and understands policy;  Develop a complaint handling and investigation procedure; Provide training, education and information on workplace bullying and employer’s anti-bullying policy and complaint procedure for all employees; Post anti-bullying policy and complaint procedure in a visible location in the workp...

Now that 2015 is upon us, it is useful to revisit the circumstances under which an employer may be subject to an employer shared responsibility payment under the Patient Protection and Affordable Care Act (the “ACA” or “Obamacare”).  Generally speaking, employers with fewer than 50 full-time-equivalent (fte) employees will not be subject to an employer shared responsibility payment in 2016 because they did not provide health insurance to full-time employees and their dependents during 2015.  Also during 2015 (encompassing all calendar months during the 2015 plan year, including months during the 2015 plan year that fall in 2016), employers with at least 50 but fewer than 100 fte employees will not be subject to a shared responsibility payment if they can certify that the following conditions were met during 2014:  (1) limited workforce size (meaning that it met the size requirements for all of 2014); (2) maintenance of workforce and aggregate hours of service (meaning tha...

It’s a new year and employers often make resolutions about managing their workforce. Here are five tips that will make any workplace operate more smoothly and efficiently. 1. Train or re-train your supervisors. Many employers with a stable workforce worry less about training or refresher training of supervisors and managers. Good supervisors and managers are  usually up to speed, but even the best of them can get caught up in the sticky details of FMLA, ADA and Worker’s Compensation, for instance, or fail to realize that an IT assistant is probably not going to be an exempt employee until you’re hit with an overtime claim. In addition, new legislation, such as the amendments to the Illinois Human Rights Act to protect pregnant workers, should remind employers that regular training of even the best supervisors keeps them abreast of changing responsibilities and creates a forum for them to easily ask their employment questions. 2. Audit your employee classificati...

The movement to increase the minimum wage was one of the biggest issues affecting the workplace in 2014. During the State of the Union address, President Obama called upon Congress to increase the minimum wage to $10.10. Not waiting for Congress to act, on January 1 twenty-one states raised their minimum wage. Among them were states traditionally friendly toward labor, like Massachusetts, Montana, and Washington. However, a number of states that have been less friendly toward labor, like Arizona, Arkansas, and Nebraska, also increased their minimum wage. It has become increasingly common for states to automatically increase their minimum wage each year based on the Consumer Price Index, with Arizona, Colorado, Florida, Missouri, New Jersey, Ohio, Oregon, Vermont, and Washington all doing so. The state with the highest minimum wage is Washington, at $9.47 an hour, although Washington D.C.’s minimum wage will increase to $10.50 on July 1, 2015. Oregon is close behind at $9.25 an ho...

2014 was certainly the year of pregnancy protection. Not only did the EEOC issue a revised Guidance on the Pregnancy Discrimination Act giving pregnant employee protections similar to that under the ADA, but Illinois revised its Human Rights Act to specifically do the same. The Supreme Court did its part in hearing an appeal from a former UPS employee who claimed discrimination based on her pregnancy. As a result of this new focus and new legislation, a question that has often arisen is how should employers implement and enforce this law. One of the easiest first steps for employers is to get posters. The revised Illinois Human Rights Act which protects pregnant employees in the workplace also requires employers covered by the Act to post notice of these protections so that employees can be aware of them. As with other legally mandated employment postings, employers can obtain these through the Illinois Department of Human Rights. Secondly, employers should review their employee ha...