The Workplace Report with Ancel Glink

Yesterday, the U.S. Supreme Court heard oral argument in this religious discrimination case which has received much media attention across the country.  The legal question before the Court is: Whether an employer can be liable under Title VII for refusing to hire a job applicant or for discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.” The facts of the case involve Samantha Elauf, a Muslim job applicant for a sales floor position at an Abercrombie & Fitch store in Tulsa, Oklahoma.  Ms. Elauf wore a headscarf to the job interview, but said nothing to Abercrombie about the fact that she was Muslim, that she wore the headscarf for religious reasons or that she would need an accommodation from the store’s “Look Policy,” which bars employees from wearing caps.  ...

On February 2, 2015, the National Labor Relations Board issued a Decision and Order in the case of Grand Canyon Education, Inc. d/b/a Grand Canyon University , 362 NLRB No. 13, in which an educational employer was found to have committed several unfair labor practices in the course of counseling employees and investigating supervisory performance.  Among the unfair labor practices found to have been committed were promulgation of an unlawfully broad rule that prohibited employees who were the subject of counseling for performance or behavior problems from discussing the counseling with persons outside the management team.  This rule was found to have unlawfully restrained employees with respect to their right to engage in protected, concerted activities.   Also found to be unlawful was a question asked to an employee in the course of an interview designed to elicit information concerning the performance of a supervisor.  When the employee volunteered during the ...

Tyler works in your IT Department. He’s not the Director, but he is a trusted technician upon whom  many of your staff rely. He is non-exempt. Occasionally, Tyler works off the clock by troubleshooting for staff via  emails, text messages and occasional telephone calls.  His name and number are distributed to staff to encourage them to contact him if they have problems. A new IT Director is appointed and she and Tyler are like oil and water. Tyler submits his letter of resignation and along with it, a lawsuit for unpaid wages for time that he worked off the clock. Off the clock work claims are one of the more challenging wage issues currently facing employers. One of the more frustrating aspects of this issue is that it is common for employees to work off the clock and not report it for a variety of reasons. Employees may, at the time, feel generous towards the organization, or don’t consider it much of an inconvenience and are willing to pitch in for the team. The only...

Off duty conduct, whether public or private, often has no bearing on an employee’s job status. Public safety jobs, though, are a notable exception to this general rule. Recently, Ancel Glink lawyers successfully defended the Village of Norridge in two appeals before the Illinois Appellate Court in which former police officers attempted to overturn their terminations by the Village as a result of their off duty conduct. In Gomez v. Norridge Board of Fire and Police Commissioners , a police officer was fired after he was involved in an altercation at a bar. The officer, while intoxicated, left his gun at a bar after he was kicked out for instigating fights. When the officer returned to the bar for his gun, he and his friends started a fight, which resulted in the Cook County Sheriff’s Deputies being called. When the deputies arrived, the officer screamed profanities at them, and his supervisor had to be called to the scene. After an investigation and a hearing before the Norridge Board...

The New York Times reported last Friday that approximately 800,000 taxpayers who obtained insurance through HealthCare.gov in 2014 received erroneous tax reporting information from the government.  They are being urged to delay filing tax returns until corrected information can be sent to them. The erroneous information relates to tax credits to help individuals pay premiums for insurance coverage purchased through federal and state insurance exchanges.  Credits were based in part on projected income for 2014 and the cost of a “benchmark plan” offered through the exchanges. According to the Administration, benchmark premium information was incorrectly reported on the forms sent to taxpayers. Corrected information reportedly will be sent out sometime during the first week in March. Taxpayers are being advised that the new data will show that some taxpayers will owe more than the original information showed, while others will owe less. The Obama Administration also has...

In Novak v. Southern Illinois University, the Seventh Circuit Court of Appeals found in favor of Southern Illinois University (“SIU”) in a federal lawsuit brought under the Americans with Disabilities Act and Section 504 of  the Rehabilitation Act.  Specifically, the Plaintiff, Patrick Novak, alleged that he had been terminated from the University’s doctoral program in Curriculum and Instruction on the basis of his post-traumatic stress disorder in violation of  federal laws. To prevail, the Plaintiff must establish a prima facie case of discrimination by presenting evidence that (1) he is disabled, (2) he is qualified to participate in the program, (3) he suffered an adverse action, and (4) nondisabled students were treated more favorably.  The parties disputed only two of the three elements of the cause of action: whether Mr. Novak was qualified for the doctoral program and whether his exclusion from the program was on the basis of his disability.  The par...

Maybe this has happened in your organization: Joanne has her annual evaluation, conducted by her Department head. The evaluation proceeds fairly well, with a few disagreements about her supervisor’s comments. At the end of the meeting, the Department Head asks Joanne whether she has any issues to talk about. Joanne hesitates but then launches into a story about her supervisor Carl. She says that he invades her “personal space” when he talks to her; frequently leaning over her at her desk.  She reports that he also had started making comments with sexual overtones and occasionally puts his hands on her shoulders from behind (a la Joe Biden!) and keeps them there for what she describes as an uncomfortable period of time. She sums up  her remarks by saying “he’s creepy and everyone knows it”.  She pauses again and then says to the Department Head “Please don’t tell him that I said these things. Maybe it’s nothing and I don’t want to start a big thing.” The Department Head ...

As officials in Ferguson, MO, New York City and likely many other cities around the nation might report, a community uprising about police practices, especially deadly force,  isn’t just a public safety and public relations issues – it’s a workplace issue too. Police officers look to their employer for support when conflict arises in the community and new methods of providing public safety and accountability fall largely on the officers to implement – with potentially good and possibly bad consequences.  For instance, while cameras worn by patrol officers are a great idea in theory, the concept raises a whole host of training, monitoring and discipline issues for union and non-union employees alike.  Municipal employers can join attorneys from Ancel Glink, the General Counsel of the Fraternal Order of Police, the Illinois Municipal League and the Illinois Chiefs of Police on March 5th  in a seminar addressing this timely topic, from crisis response, to liability, tra...

Companies that do business with the State of Illinois know that they must jump through a lot of hoops in order to obtain a state contract. Among other requirements, an affirmative action policy, a policy against unlawful discrimination, and a policy against sexual harassment all must be in place before a company can receive a contract from the state. However, one often overlooked requirement is the establishment of an anti-drug policy, which must include drug testing. Both the Substance Abuse Prevention on Public Works Project Act (“Substance Abuse Act”) and the Drug Free Workplace Act require employers bidding on state contracts to implement anti-drug policies. The Substance Abuse Act (820 ILCS 265/1, et seq .) prohibits employees from possessing or being under the influence of drugs or alcohol while working on a state contract. The Act requires all employers receiving state contracts to implement a drug testing program. This program requires employee to take urine drug tests random...

When you think of the work of a pharmacist, do you think of administering immunizations? Pharmacy chain Rite Aid did when it jumped on board the walk in clinic craze of the last ten years. When the company wanted to start offering flu shots and other immunizations to its customers, it notified all of its pharmacists that they would be required to undergo training to administer these shots.  That presented a big problem to Christopher Stevens, a 34 year veteran pharmacist working for the company with excellent evaluations. It turns out that Stevens has a genuine needle phobia. Just the sight of a needle makes him sweat, shake, turn pale and feel anxious and faint. The disorder has a name – trypanophobia. When he received notice in 2011, along with the other Rite Aid pharmacists, directing him to undergo training to obtain a certificate to administer immunizations, he promptly provided the company’s HR department with a note from his physician describing his trypanophobia and ad...

In a recent decision in Ledbetter v. Good Samaritan Ministries , the Seventh Circuit Court of Appeals ruled against the employer finding that there was sufficient evidence to allow the employee’s discrimination and retaliation claim to move forward to trial. Plaintiff, Linzie Ledbetter filed suit under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981 against his former employer, Good Samaritan Ministries of Carbondale, Illinois, a tax-exempt nonprofit organization that provides services to persons in need including emergency shelter, transitional housing and a food pantry. The lawsuit charged retaliation for Ledbetter’s having filed a charge of racial discrimination and of retaliation with the EEOC.  The Seventh Circuit found that the District Court erred in granting the employer’s motion for summary judgment and allowed the case to proceed to trial. Although the employer insisted that its decision to terminate Ledbetter was made five days prior to receiving...

On February 9, 2015, Governor Bruce Rauner issued Executive Order 15-13, entitled “Executive Order Respecting State Employees’ Freedom of Speech”.  The Executive Order directed the State Department of Central Management Services (“CMS”) and all other State agencies to cease enforcing “fair share” provisions of collective bargaining agreements covering State employees.  At the same time, the Governor has filed a pre-emptive “declaratory judgment action” in federal court, asking the court to declare the fair share provisions of the Illinois Public Labor Relations Act (IPLRA) to be unconstitutional, at least as applied to State employees working under the ultimate direction of the Governor. It is interesting to note that a few years back, former Indiana Governor Mitch Daniels executed a similar order. In response to a union challenge, the 7th Circuit, which is the same court that may ultimately hear the present case, upheld Daniel’s action as constitutional. Under IPLRA, “fair...

On duty injuries are difficult to manage. They leave employers short staffed and the employee with injuries that are sometimes permanent. If only there was a way to select or assign employees who were least likely to become injured on the job. If only there was a way to know about an employee’s past injury record so as to avoid hiring or assigning an individual to a job to which he or she may have a higher than normal risk of re-injuring themselves. If only employers could ask during the job interview about past on the job injuries. Unfortunately, employers can’t do this. First of all, asking a job applicant if they have ever been injured on the job before may lead to an ADA violation. Basing a hiring decision, even in part, on a medical condition, is unlawful. Legitimate safety concerns do not diminish an employer’s obligation to avoid otherwise unlawful inquiries of applicants. Employers must restrict their inquiry in this regard to whether the applicant can perform the essential f...

If an employer fired a female employee for getting divorced, but did not fire two male employees who also got divorced, this would almost certainly be illegal, right? This clearly violates state laws prohibiting discrimination based on marital status, or federal laws prohibiting gender discrimination, does it not? Well, if the employer is a religious organization, the answer is actually probably not. As a woman in Michigan recently discovered, religious organizations can fire employees for reasons that would otherwise be illegal. Last Thursday, a federal appeals court held that it is not illegal for a religious organization to discriminate against certain employees. The court held that the “ministerial exception” to employment laws holds that it is not illegal for a religious organization to fire an employee who is a “minister” based on that person’s gender, marital status, race, disability, or any other protected category. The case involved a woman who worked for a non-denominati...

It’s almost Valentine’s Day and some say that love is in the air.  It’s a beautiful thing unless it’s happening in the workplace – then it can be fraught with problems. The first problem is that it’s almost impossible to effectively prohibit dating in the workplace, given that people spend a great deal of their lives at work and form attachments and interests in their co-workers. Sometimes relationships blossom and the couple live happily ever after. This can still raise accusations of favoritism if one of the parties in the relationship has supervisory authority and can influence advancement or wage increases for the other. Although rarely successful, co-workers who believed they have been disadvantaged by  the relationship, may make gender discrimination claims. In addition to the above situation, employers often face one of these problems: one person is interested and the other isn’t or a couple dates for a time and one breaks it off.  Most people know the routine,...

In Sklyarsky v. Means-Kraus Partners, L.P. , the Seventh Circuit of Appeals ruled in favor of the employer in a discrimination action alleging violations of Title VII and Section 1981.  Specifically, the plaintiff, Yaroslav Sklyarsky, alleged that he was terminated from his janitor position on account of his Ukrainian national origin.  To establish a prima facie case of discrimination, the plaintiff was required to show membership in a protected class, and that he was meeting the employer’s legitimate job expectations, suffered an adverse employment action, and was treated less favorably than a similarly situated employee outside the protected class. However, the undisputed evidence showed Sklyarsky had not been meeting the employer’s legitimate job expectations.  In fact, the employer’s well-documented records showed that plaintiff was involved in several workplace violations which led to his termination. While plaintiff insisted that he performed his job satisfactoril...

The First District Court of Appeals recently had an occasion to determine if attorneys working for the Illinois Commerce Commission are exempt managerial employees under the Act.  (American Federation of State and Municipal Employees (AFSCME) Council 31 v. State of Illinois, Illinois Labor Relations Board, and Department of Central Management Services (Illinois Commerce Commission), 2014 IL App (1st) 130655) Surprisingly the Court reversed the decision of the Illinois Labor Relations Board and found that two out of three of the disputed attorneys were not managerial employees under the Act.  The decision was a surprise given the First District opinion in Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board , 202 Ill.App. 3d 1013 (1990).  In SENA the court found all of the attorneys in the Chicago Law Department to be exempt managerial employees and excluded from the bargaining unit.  The court in SENA said that the Law Department attor...

Jan is a great worker. A highly competent second in charge. Some even say that she’s better than the Director. She is outgoing and has many friends in the community. With an active social life,  she is known to hang out after hours at a couple of local establishments which serve alcohol. Jan has never appeared drunk in public or behaved in any way which would impair the reputation of her employer, and she shows up for work on time, often going that extra mile for her employer,  but her employer just doesn’t like the fact that Jan likes to have a few drinks after work or on weekends; they see it as a bad habit that might eventually impair her ability to perform her duties and they feel it’s “undignified” for her to be hanging around bars. There is growing sentiment that Jan should be demoted or discharged before she does something that will embarrass the employer. Is the fact that Jan enjoys a drink off duty a lawful reason to demote or discharge her? According to Illinois ...

Many employers are tempted to classify their workers as independent contractors, and not employees. Employers may look at this as a quick and easy way to save some money. After all, employers do not need to pay Social Security and Medicare taxes for independent contractors, and, for employers who have more than 100 employees, do not need to pay health insurance either. However, while this may seem like a decent way to save some money in the short run, in the long run it may cost you. In recent years, Illinois has gotten tough on employers misclassifying employees as independent contractors. In addition to new laws like the Employee Classification Act (820 ILCS 185/1, et seq .), Attorney General Lisa Madigan and former-Governor Pat Quinn have vowed to crack down on misclassification. Misclassifying employees as independent contractors can lead to thousands of dollars in penalties and interest. Therefore, knowing what makes a worker an independent contractor or an employee is important...

Now that the office Super Bowl pool winners have been declared (excuse us, we mean “Big Game” so as not to violate any copyright laws), the holiday season is really officially over. While we slog through the rest of what has admittedly not been a bad winter season, it’s time to take a look at revisions to personnel policies in the new  year. 2014 brought new laws and trends which undoubtedly should cause employers to take a second look at their personnel policies and procedures to ensure that they remain current with the law. Here are five updates every employer should consider for the new year: 1. Pregnancy Discrimination and Accommodation. The Illinois Human Rights Act was amended to afford pregnant workers protection against discrimination as well as require reasonable accommodations for a worker based on pregnancy. This applies to private as well as public employers alike who meet the threshold requirements of the Act. Employers should amend their policies to incorporate t...