The Workplace Report with Ancel Glink

Many people do it; they stop taking a prescription medication but save the remainder of it. Sometimes it sits in the medicine cabinet and the patient may decide to take it later when experiencing similar symptoms. The question is whether at some point that old prescription is so out of date that taking the medication amounts to the illegal use of a controlled substance. For the plaintiff in a recent case, even a 16 year old prescription turned out to be a validly prescribed medication. In the recent case of Walker v. Cook County Sheriff and Cook County Sheriff’s Merit Board, Plaintiff Walker was a 32 year veteran deputy sheriff for Defendant. The Sheriff’s Office had a drug free workplace policy. After being randomly selected for a drug screen, plaintiff tested positive for oxazepam. The Sheriff’s Office opened an investigation, which included allowing the employee to bring in a valid prescription for the positive test result. Plaintiff produced a number of prescription bottle...

Over the past month, Governor Bruce Rauner has been meeting with local government officials around the state in an effort to promote his “Turnaround Agenda.” The Agenda, which proposes sweeping changes to the laws affecting local governments, has been controversial. Last Tuesday, union supporters turned out in force at a Naperville City Council meeting in which the proposal was on the agenda. While Rauner’s Turnaround Agenda proposes a number of changes, the three that would most impact local governments are: 1) the creation of “local employee empowerment zones;” 2) the abolishment of the state’s prevailing wage requirements; and 3) a property tax freeze.  Rauner’s “local employee empowerment zones” would allow a unit of local government (i.e. a municipality, school district, township, etc.) to decide whether its employees have the right to join, or refrain from joining, a union. Essentially, this legislation would permit local governments to implement right-to-work ordin...

Many employers offer employee wellness programs because the current thinking is that successful participation in such program raises employees’ awareness about their health which will ultimately translate into fewer claims which will mean lower premium costs for employers. It all sounds good until somebody files a discrimination claim.  In the last few years, the EEOC has focused attention on possible discriminatory actions of employers via administration of their wellness programs. The Agency has filed suit on behalf of workers in a handful of instances claiming violation of the ADA resulting from adverse employment actions following compulsory disclosure by employees of previously  undisclosed disabilities. Now the EEOC has issued proposed rules to regulate wellness programs. While the rules are not final yet, and may ultimately be revised, employers should be aware of the position of the EEOC on this popular subject. The proposed rules focus mainly on the issue...

In Vaughn v. City of Carbondale, the Fifth District Appellate Court ruled in favor of the plaintiff Jeffrey Vaughn, finding he was entitled to health insurance benefits under Section 10 of the Public Safety Employee Benefits Act (“PSEBA”).    On June 28, 2005, Vaughn, a City police officer, was on duty when he was stopped by a motorist asking for directions. While Vaughn was outside his squad car assisting the motorist, he received a request from a police dispatcher for him to respond over the radio. He then returned to his vehicle and reached headfirst through his driver’s side door, which he had left open, in an attempt to retrieve his radio from inside the car. As he reached inside the vehicle, he struck the top of his head on the door frame, causing him to “see stars” and experience immediate sharp pain in his arm.  After his shift, Vaughn sought medical attention from his personal physician, who took him off duty as a result of his injury.  The issue befor...

With no pun intended, the Federal District Court recently reinforced the legal lesson that teachers do not have unfettered right of free speech when presenting their lessons. In the case of Brown v. Board of Education of the City of Chicago , Plaintiff Brown was a sixth grade teacher for the district. During a lesson originally intended to be about grammar, Brown intercepted a note being passed among students which contained abusive references, including the “N” word. Mr. Brown decided to take time, as he put it, to make it a “teachable moment” with his students .Unfortunately for teacher Brown, at the point when he was reading the note, including the “N” word, the principal entered the classroom to observe the lesson. The Principal got an earful.  The Board of Education has a discipline code which, among other rules, contains a prohibition on use of abusive language.  Board of Education employees also testified that use of the “N” word was prohibited altogether in school...

Sometimes employers are lucky enough to have an employee who is so hardworking that they don’t just want to work their one assigned job, but look for other jobs with the employer that they can do as well. When the employer is pleased with the work of that employee and the employee is capable of performing both jobs, it seems to be an ideal solution. Why not allow an off-duty police officer to plow snow in the winter and cut grass in the summer?  Hiring a current full  time employee into a second (presumably part time) position will generally increase the cost of that position by 50% though, because it will likely increase that employee’s total hours worked in a week to over 40. A non-exempt employee  is entitled to overtime at a rate of time and one half for hours worked in excess of 40 hours in a work week, even if that total number of hours is the result of working two separate jobs.  Now, some employers might find that to be acceptable still. An existing ...

In my last blog post , I discussed when an unemployed individual becomes eligible for unemployment benefits, and how they can go about obtaining these benefits. This week, I decided to continue this theme, and write about some of the key issues which employers should be aware of in regards to unemployment benefits. The Illinois Department of Employment Security (IDES) provides unemployed workers with unemployment benefits, administering the Unemployment Insurance Act (820 ILCS 405). The funds with which the IDES pays these benefits are provided by employers, who must pay a percentage of each employee’s wages into a fund used by IDES to provide benefits.  Most employers will pay a rate of around 4% of the employee’s wages to the IDES. However, this rate may vary based on total taxable wages and benefits provided to employees, as well as the industry in which the employer operates (certain industries like mining, construction, and manufacturing must pay higher rates). Moreov...

Last November we reported on the 6th Circuit case of EEOC v. Ford Motor Co. ( read that post here ).  At that time 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 well as a number of other leave of absences and flex benefits provided by the defendant. She even tried telecommuting on a trial basis which resulted in, among other things, her performing duties outside of the regular ...

We have previously reported on the difficulty in terminating public employees through the grievance arbitration process (See City Des Plaines v. Metropolitan Alliance of Police, 2015 Ill.App.1st 140957 (March 31, 2015)) . Public employees, whether or not represented by a Union, also are entitled to certain constitutional protections not afforded in the private sector. When the government is the employer then government action is restrained by the constitution. Public employees may have a property interest in their position, affording them constitutional due process rights. Public employees may have privacy interests in their person, personal effects or workplace desk preventing a government employer from searching a desk or purse, or drug testing the employee without meeting constitutional requirements.  In Moss v. City Pembroke Pines, 14-11240 Eleventh Circuit (March 31, 2015) , an assistant fire chief was terminated due to budget cutbacks. The assistant chief sued alleging t...

Last Tuesday we wrote about the requirements necessary for a worker to collect unemployment benefits. We noted that the Illinois Department of Employment Security (IDES) will provide temporary payments to unemployed individuals who 1) are unemployed through no fault of their own; 2) are able and available to work and actively looking for work; and 3) have worked for four of the previous five quarters (i.e. three-month time period) and made at least $1,600 during these four quarters.  Generally, an individual will not be eligible for benefits if that worker voluntarily quits their job unless their resignation was for a handful of reasons such as quitting in lieu of being fired, quitting because of being sexually harassed; quitting because of a health condition of the worker or his or her spouse; and quitting because the employer moved the workplace and it is no longer reasonable to travel to and from work. What if the employee quits because the employer demotes them or cuts the...

Let’s say an employer has an opportunity to put an arbitration clause in its employment contract. Should they do so?  There has been a great increase in arbitration in recent years, especially the arbitration of employment disputes.  Recent studies even suggest that arbitration and litigation outcomes are not significantly dissimilar; however this study excludes civil rights claims.  Employers should be aware of the advantages and disadvantages of including arbitration clauses in their employment contracts. Advantages 1. Privacy Unlike trial, arbitration provides a private arena where the employee and employer can settle their disputes.  Therefore, employers who desire confidentiality might consider including an arbitration clause in their employment contract.   2. Cost Trial is expensive. Even if an employer’s conduct is justifiable, they might be persuaded to settle in order to avoid the burden of trial expenses.  In contrast, arbitration is...

Unemployment can be a scary thought. For most people, paying the bills is hard enough when they are working full time. Without a steady income stream, how can anyone manage to survive? One way to make up at least part of the lost income is by obtaining unemployment benefits. The Illinois Department of Employment Security (IDES) will provide temporary payments to unemployed individuals who: 1) are unemployed through no fault of their own; 2) are able and available to work and actively looking for work; and 3) have worked for four of the previous five quarters (i.e. three-month time period) and made at least $1,600 during these four quarters.  In order for an unemployed person to be eligible for unemployment benefits, that person must be unemployed through no fault of his or her own. For example, those who are out of work because of company layoffs or reductions in force are eligible for unemployment benefits. However, those unemployed who quit their jobs or were fired becau...

Last Friday, a St. Clair County judge ruled that the State should continue to pay unions the fair share membership dues of state workers who opted out of union membership. In February of this year Illinois Governor Bruce Rauner issued an Executive Order which eliminated the fair share fees to unions representing state workers. Fair share is the payment established by law and collective bargaining agreements, that is collected from workers who do not wish to be union members but enjoy many of the benefits of union membership because a union represents and bargains on behalf of those in their same job title. Approximately half of the states in the nation have some form of this law, commonly called “right to work”, including Indiana, Michigan and Wisconsin. The battle is far from over.  The St. Clair County judge ordered only an interim payment of fair share fees to unions, which Governor Rauner claims that the state will help recover from the unions for workers once the litigati...

Let’s say that an employer schedules its employees to attend training out of town. Those attending include three exempt and three non-exempt employees.  The training seminar starts on Monday morning at 8:30a.m. but it’s a three hour drive away, so everyone agrees that all of the employees should drive there on Sunday. The Employer has directed them to car pool in two cars to save expenses. The question arises whether the Employer has to pay the employees for their time in driving to the seminar location on Sunday. Of course, travel time of exempt employees requires no additional pay, regardless of the day of the week. But what about the non-exempt staff? Many employers, therefore, erroneously believe that if they direct the exempt employees to drive the non-exempt employees to the training location then the non-exempt employees will have no claim for pay.  The Department of Labor regulations state “ As an enforcement policy the Divisions will not consider as worktime ...

As everyone who has ever been on the wrong side of a Fair Labor Standards Act overtime case knows, one of the issues that typically arises when an employee asserts that he or she was not paid overtime is when the employee’s “workweek” begins and ends.  This begs the question:  What is a work week?   In Johnson et al. v. Heckman Water Resources et al. , No. 13-40824, 5th Cir., 2014, the court held that it is the employer who determines what the “workweek” shall be.  The employees in Johnson contended that their workweek should be Thursday through Wednesday since they worked those days.  Since the employees worked 12 hour shifts for 7 consecutive days and the employer was on a 2 week pay cycle, this would have resulted in approximately 40 hours of overtime during each pay cycle for each employee.  The employer had an established workweek which began on Monday and ended on Sunday and it paid its employees bi-weekly.      The FLSA does ...

If you paid attention to the news last week, you probably heard about Indiana’s religious freedom law. The law, titled the “Religious Freedom and Restoration Act,” sparked a firestorm of controversy around the country. Opponents of the bill claimed that it permitted discrimination against gays, lesbians, and the transgendered. Supporters claimed that it allows people the freedom to follow their religious beliefs. What was largely missing from the debate, however, was an objective legal analysis of what the law actually said. So, I decided to use this space to do that.    What many people may find surprising is that the law says nothing about homosexuality, gay marriage, or anything else related to that topic. Nothing in the law states that a business may refuse to cater a gay wedding or treat homosexuals, or anyone else, differently. The law does, however, state that the government may not “substantially burden a person’s right to exercise religion” unless there is a “co...

Collective bargaining is a difficult art to master.  Communication is essential:  one must speak and write not only so as to be understood but so as not to be misunderstood.  It is especially critical that, before one concludes that a deal has been reached at the bargaining table, one must be certain not only that both sides are in agreement with the terms of the deal but that those terms have been memorialized in a writing the interpretation of which is accepted by both sides. These principles are exemplified by the recommended decision and order issued on February 27, 2105 by Illinois Labor Relations Board Administrative Law Judge Anna Hamburg-Gal in City of Park Ridge , Case Nos. S-CA-13-197 and S-CB-047.  In City of Park Ridge , the City and International Union of Operating Engineers, Local 150, the Union representing the City’s public works employees, had engaged in bargaining for an agreement to go into effect May 1, 2013.  A significant issue in nego...

We recently ran a serious of articles on changes being implemented by the NLRB that, in some instances, reverse established precedent.  For instance last December the NLRB, by a 3-2 decision, overturned a prior NLRB decision which had upheld employer policies prohibiting union organizing over company email. Implementing this Board change in the law, an administrative law judge recently struck down an employer rule that prohibited employees from using business email to “engage in activities on behalf of organizations.”  The law judge said the prohibition was too broad and violated the National Labor Relations Act, 29 U.S.C. 151.   Purple Communications Inc. and Communication Workers of America , 2015 WL 1169344 (N.L.R.B. Mar. 16, 2015). The employer argued that allowing blanket use of emails by employees “on behalf of organizations” may introduce computer viruses to the system.  The administrative law judge said these concerns could be addressed by software p...

A recent Illinois Appellate court decision illustrates the difficulty of terminating a police officer through the grievance arbitration process.  In City of Des Plaines v Metropolitan Alliance of Police Chapter 240, 2015 IL App (1st) 140957, the City terminated a police officer for using unnecessary force and for failure to report that use of force.  The officer challenged his termination through grievance arbitration pursuant to the parties Collective Bargaining Agreement. The City identified three incidents where the officer allegedly misapplied force against arrestees:  (1) in August 2010, he punched in the face a handcuffed arrestee who was seated in the back of his squad car; (2) in January 2010, he punched an arrestee in the nose inside the police station; and (3) in June 2009, he pushed an arrestee in a holding cell.  The officer had not reported any of these incidents as required by department rule. The arbitrator issued an award (1) reinstating the...

Let’s say an employer has expensive equipment or products which it has good reason to protect. Concerned about break ins and vandals, it installs security cameras at various locations throughout the workplace. A routine check of the video recordings reveals employees stealing from the employer. Naturally, their supervisor is outraged and maybe yelling “I want them fired now.” The employees are not members of a union but also were never made aware that the cameras were installed. Can the employer take disciplinary action based on the video information. The use of video equipment for surveillance in the workplace is increasingly common. The sophistication of equipment and the ease of operation make it simple to operate and easy to conceal. But what about employee rights? The fact of the matter is that an employer has a right to install and use surveillance cameras in most areas of the workplace, to monitor property and employee conduct. The only restrictions that exist are indiv...