The Workplace Report with Ancel Glink

Over the past few decades, employers have increasingly attempted to recruit diverse workforces. The benefits of such policies cannot be overstated—in an increasingly globalized economy, companies with diverse workforces are probably better positioned than those lacking such workforces.  While policies promoting diversity clearly provide benefits, employers must take care not to take these policies too far. If they do, they may engage in reverse discrimination. Reverse discrimination is discrimination against the majority group, which in the United States means the white population. Reverse discrimination is illegal, a violation of Title VII of the Civil Rights Act of 1964. The number of reverse discrimination claims has been rising in recent years.  Reverse discrimination occurs when an employer takes a negative employment action against someone because he or she is white. Refusing to hire, demoting, refusing to provide equal pay, or treating an employee differently ...

Many organizations consider stability to be an important selection criteria for top positions. Public and private employers alike often want to know that their department heads will stick around at least long enough to implement their initiatives and maintain stability in the organization. But, is it appropriate for an employer to downgrade a candidate’s promotional qualifications simply because a candidate is retirement eligible. The 8th Circuit recently found that a municipality’s consideration of a lieutenant’s status as retirement eligible when considering selection of a new chief of police was evidence of discrimination. In Hilde v. City of Eveleth, the chief of police announced his retirement. As was the policy of the municipality, their Board of Police Commission, comprised of three members, conducted candidate evaluations and recommended a candidate for selection, as determined by a point system  based on both objective and subjective criteria.  The Plaintiff ...

In a 6-3 decision this week in Young v. United Parcel Service, Inc. , the U.S. Supreme Court ruled in favor of Young, a female delivery driver in a pregnancy discrimination case.  Young argued that UPS discriminated against her when it refused to lighten her work duties while she was pregnant. The Supreme Court sent the case back to the Fourth Circuit Court of Appeals to determine whether a genuine issue of material fact exists as to whether UPS’ reasons for having treated Young less favorably than it treated other non-pregnant employees were pretextual. Young, who worked at a Maryland facility, became pregnant in 2006. She made her request for an accommodation after her doctor advised that she not be required to lift packages weighing more than 20 pounds.  UPS required drivers like Young to be able to lift up to 70 pounds.  UPS told Young that she could not work while under a lifting restriction and sent her home.  In response, Young filed a federal lawsuit all...

Many people were shocked last fall when a lawsuit against Jimmy John’s revealed that the sandwich chain required its employees to sign non-compete agreements. The non-compete agreements, which are contracts in which an employee agrees not to work for a competing business for a period of time, were not limited to high level executives. Instead, the agreements prohibited sandwich makers, delivery drivers, and other low-level employees from working for competitors.  Jimmy Johns is not the only company requiring employees to sign non-compete agreements. Non-competes have proliferated in recent years, worrying labor organizations and employee rights groups throughout the country. As a result, a number of states have introduced measures banning or restricting the use of non-compete agreements.  For example, last year Massachusetts’s governor, Deval Patrick, pushed for legislation that would ban most non-compete agreements in Massachusetts. While the measure failed, anothe...

This week we have been reviewing the newly issued Guidance by NLRB General Counsel Richard F. Griffin, Jr. addressing employee handbook rules or policies that the agency has found to be lawful or unlawful  as they relate to an employee’s Section 7 rights. Section 7 refers to the section in the National Labor Relations Act that gguarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities." While the National Labor Relations Act applies only to private sector employers and employees, the public sector labor acts in Illinois are modeled after the NLRA and the state labor boards, which enforces the state labor acts,  give great deference to the body of law developed by the Natio...

Last week the NLRB General Counsel issued an eight point  guidance on the agency’s view of what makes a policy or work rule lawful or in violation of an employees’ Section 7 rights to engage in protected concerted activity. Yesterday  we blogged about the first two points in the guidance, rules regarding employee conduct and rules regarding confidentiality requirements of an employer.According to  General Counsel Griffin, the NLRB is likely to find work rules or policies unlawful if they restrict an employee’s right to engage in any topic of discussion with others that concerns wages and working conditions, or that restricts an employee’s expression of opinion over those issues, even if those expressions are seen as disrespectful. Today we examine three more issues in the guidance: Policies regarding conduct toward fellow employees, policies regarding employee interaction with third parties and rules restricting use of employer logos, copyrights and trademarks. 1...

Until or  unless a change occurs in either the composition of the federal and state labor relations boards, or a the legislature amends the state and federal labor relations acts, employer must face the reality that the trend in rulings on workplace rules remains decidedly in favor of finding employee protections. To that point, last week the General Counsel of the NLRB reported on its findings of lawful and unlawful employee handbook policies covering eight general areas of employee activity protected by Section 7 of the National Labor Relations Act. Section 7 of the NLRA generally protects the concerted activity of employees to speak together on wages and working conditions and their right to unionize. Similar protections are afforded public employees in Illinois.  According to the General Counsel, the NLRB finds Section 7 violations when 1) an employee reasonably believes that the rule or policy restricts their Section 7 rights; 2) the rule or policy was promulgated in...

Last week we gave employers five ways to increase the number of employment lawsuits against them. Based on our collective experience in working with employers and defending employment lawsuits, we have identified five more common mistakes that increase an employer’s risk of litigation: I. Loose Lips After Employee Termination It is important that the facts and circumstances surrounding an employee’s termination remain confidential.  Employers should be wary of conversations with the employee regarding his or her work performance after termination. Likewise, the employer should not discuss the reasons for termination internally except with individuals with a legitimate need to know. II. Uncontrolled Letters of Reference Glowing letters of reference for someone terminated for performance reasons often become “Exhibit A” in an employee’s discrimination complaint.  It is very important to have a policy about the type of information that can be written in referen...

We are often asked for advice by employers for the following situation: They have an employee who they believe in good faith has a serious medical condition that qualifies for FMLA leave. The employer  has done all of the right things. They have sent the employee all of the forms to complete for FMLA, including the medical certification form for their physician to complete. The problem is that the employee doesn’t return the forms, and isn’t able to return to work. Sometimes employees refuse to return the forms because they want to “save” their FMLA leave for later and use their paid benefit time initially. Others are perhaps too ill, have difficulty getting physician cooperation, or just don’t get around to completing and returning the forms. What is the recourse? Of course, the obvious recourse is that the employer can deny the FMLA leave.  The employee can utilize any accrued benefit time without FMLA protections, including a right to return to a same or similar positi...

In response to the Blagojevich scandal, over the past few years the Illinois General Assembly has broadened the protections of the Whistleblower Act (740 ILCS 174/1, et seq .). Illinois now has some of the strongest protections for whistleblower in the country. Therefore, employers, particularly those who work in government, should have a basic understanding of the Act, and implement policies that will ensure that they do not violate it.   The Whistleblower Act is designed to protect employees who report an employer’s violation of the law. Both public and private sector employees are covered by the Act, and its protections have been interpreted broadly by the courts. If an employee believes that his employer is engaging in illegal activity, he can report it to the Attorney General, Secretary of State, Comptroller, Treasurer, or any state agency.  If an employer retaliates against an employee for reporting the employer’s illegal conduct or refusing to engage in illegal...

Last week we talked about whether an employee would be eligible for unemployment in Illinois if he or she has exhausted all of their available leave, including their FMLA leave, and cannot return to work or can only return part time. In many cases that employee will be eligible for either full or partial unemployment benefits. Let’s look at a similar scenario from a different perspective. Often times an employee has a serious medical condition which requires them to exhaust all of their available leave, including FMLA,  and at the end of that leave the employee is not quite ready to return to work, or not quite ready to return full time. In fact, let’s say that the employee has a note from their doctor that says that they need an additional four or five weeks off of work before they can return. What options does an employer have at that point? Many employers believe that once an employee has exhausted all leave entitlements, including FMLA, that they no longer have to hold...

Employment lawsuits are an unfortunate reality for employers in today’s world. Some common mistakes may actually ensure that your risk in litigation increases! Here are five common mistakes that help your employees bring suit against you: I. Undocumented employee misconduct or performance problems An employee’s misconduct and performance issues should always be documented.  Proper documentation goes a long way toward avoiding a former employee’s claim that he or she was wrongfully terminated based on a protected class such as age, race, disability or gender. II. Inaccurate Employee Evaluations An employee’s evaluation should accurately reflect the person’s job performance.  Having an inaccurate, grade inflated employee evaluation can have unintended consequences down the road.  Inaccurate employee evaluations always come back to be a problem for the employer.  III. Failure to have Anti-Harassment Policy and Complaint Procedure One of the b...

By now, most employers are familiar with standard measurement and stability periods for ongoing employees under the ACA.  A standard measurement period is a period from three to twelve months in length selected by the employer that is used to determine whether a variable hour employee (an employee with respect to whom full-time employee status has not been determined) is a full-time employee or not.  The standard stability period that follows is a period of the same length as the standard measurement period during which insurance coverage must be offered or may be withheld from the employee, depending on the results of the measurement period analysis. But employers are not as familiar with the application of initial measurement and stability periods for employees who are hired during the standard measurement period.  Let us say, for example, that an employer is a large employer under the ACA but qualifies for the transition exception because it employs 50-99 full-ti...

As the alarm gets louder about poorly funded governmental pension programs and the drain on the state’s economy, the media focuses greater attention on public employees who receive disability benefits. Sometimes applicants fight hard for a disability pension. Take the case of Howe v. Retirement Fund of the Firemen’s Annuity and Benefit Fund of Chicago.  Plaintiff was  hired in 1977 as a paramedic for Chicago Fire Department (“CFD”). Through the years he was promoted until he eventually achieved the position of deputy district chief of employee relations. Although that job did not include paramedic duties, plaintiff occasionally responded to emergency calls. On his way home from work one night, he heard a call on his dispatch radio that a person had fallen off of a CTA platform onto the tracks. Being in the vicinity, the plaintiff went to the scene of the accident, jumping the turnstile to reach the victim, who was already being cared for by others when plaintiff arrived. ...

Our sister blog, The Municipal Minute , recently reported on a case where a tenured teacher could not be fired even though she came to work drunk. So, how does a tenured teacher get fired in Illinois? First, a tenured teacher may only be fired for cause. Causes for which a tenured teacher may be fired include incompetency, cruelty, negligence, or immorality. Whether a teacher is incompetent, or engages in cruelty, negligence, or immorality is largely up to the school board to decide. In fact, the school board is solely responsible for determining whether to fire a teacher. Once the school board determines that cause exists to fire a teacher, it then must decide whether the teacher’s behavior is “irremediable” or “remediable.” A teacher’s behavior is irremediable if it causes damage to the school, students, or faculty that cannot be corrected. For instance, if a teacher is convicted of a serious crime, or sexually harasses a student, this is considered irremediable behavior. I...

Occasionally an employee exhausts their leave under the Family Medical Leave Act, as well as all other benefit time available to him or her and is still unable to return to work due to their serious medical condition. Furthermore the employer has determined through the interactive process required under the Americans With Disabilities Act that no reasonable accommodation exists which would allow the employee to perform the essential functions of their job for the foreseeable future. It becomes apparent that the employer can no longer hold the employee’s job and terminates the employment relationship. The question then becomes whether the employee is entitled to unemployment benefits by virtue of the discharge. Under the Unemployment Insurance Act, a claimant is generally eligible for benefits if that person involuntarily became unemployed through no misconduct of their own and the claimant is able and available for work. The Illinois Department of Employment Security (“IDES”)defin...

In National Federation of Independent Business v. Sebelius, 132 Sup.Ct. 2566 (2012) the United States Supreme Court by a 5-4 vote upheld the individual mandate provisions of the Patient Protection and Affordable Care Act (the “ACA” or “Obamacare”) as a constitutional exercise of the taxing power of Congress.  On March 4, 2015, the Supreme Court heard oral argument in King v. Burwell , a case challenging the legality of the subsidies (premium tax credits and cost-sharing subsidies) that are currently available to people who purchase insurance through insurance marketplaces, or exchanges, whether those marketplaces were established by the federal government, by a state, or by means of a federal-state partnership.    The law says, quite simply, that such subsidies are available through exchanges “established by the state”.  The challenge in King v. Burwell is based on a strict interpretation of the statute and contends that subsidies provided for insurance purcha...

In its continuing emphasis on extending the protections of the National Labor Relations Act to non-union employees, the National Labor Relations Board in Staffing Network Holdings, LLC , 362 NLRB No. 12 (February 4, 2015) upheld the recommended decision and order of an administrative law judge finding that a staffing agency’s action in terminating an employee who engaged in allegedly insubordinate behavior in support of a co-worker was guilty of an unfair labor practice.  This case illustrates the sometimes difficult line-drawing that a front-line supervisor must do in deciding whether it has grounds for disciplining an employee who defies the supervisor’s instructions in conjunction with offering support to a co-worker. The ALJ’s statements in the case are instructive.  She says that “[u]nrepresented employees who engage in a peaceful work stoppage to protest the termination of a fellow employee are engaged in protected concerted activity….  Under Board law, even a ...

Anyone who ever had a teenage child many have heard a story like this before. Darvin Hooker began working a second job at O’Hare Airport as an unarmed security officer through a private company that staffed that position. His employer had a policy that anyone sleeping on the job would be immediately discharged. Three months into the job, Hooker was found dozing off at his post because, according to Hooker, he had worked a 10 hour shift at his other job just prior to reporting to his security officer job. The company fired him and he applied for unemployment benefits. Mr. Hooker was initially denied benefits because the Illinois Department of Employment Security found that he had engaged in willful misconduct, thereby revoking his right to unemployment. He appealed that decision and obtained a reversal of that finding and the agency’s Board of Review upheld his right to collect benefits. The company, presumably outraged at that decision, sought administrative review in the circ...

In a statement that would have seemed unbelievable 15 years ago, many in the medical community have declared that AIDS has become a chronic disease, and not an acute one. With the effectiveness and availability of anti-HIV medication steadily increasing, HIV-positive individuals are living long, healthy, and productive lives. This is unequivocally good news. However, it also means that there are more HIV-positive employees than ever before. As a result, employers should be familiar with the AIDS Confidentiality Act, which governs the treatment of HIV-positive employees (410 ILCS 305/1, et seq. ). The Act, passed to combat discrimination against HIV-positive employees and encourage HIV testing, prohibits an employer from disclosing that an employee has taken an HIV test, and also prohibits the disclosure of the results of this HIV test.  Moreover, the Act prevents an employer from compelling an employee to disclose HIV-related information. This includes whether the employee...

The 7th Circuit Court of Appeals recently sidestepped the chance to apply the newly issued holding of the Supreme Court in analyzing whether retiree health insurance benefits vest pursuant to a collective bargaining agreement, while addressing another federal constitutional challenge on the subject.  In Underwood v. City of Chicago , the plaintiffs, including retired employees, sued the City of Chicago after it raised the premium contribution for retirees and changed the health insurance plan design upon expiration of the City’s ordinance that secured those benefits. Plaintiffs argued that the reduction in benefit levels and increase in premium contribution violated the Illinois Constitution’s Pensions Clause which prohibits the diminution or impairment of pension benefits. They also alleged that the City violated the Contracts Clause of the U.S. Constitution which prohibits states from passing any law that interferes with contract rights. The 7th Circuit held in Underwood la...