The Workplace Report with Ancel Glink

Workplace discrimination lawsuits filed in federal court under the Americans with Disabilities  Act (“ADA”) have increased over the years. As a result, employers need to have a clear understanding of the ADA’s requirements and their legal obligations under the Act.   Title I of the ADA of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments.  The ADA defines an individual with a disability as a person who: Has a physical or mental impairment that substantially limits one or more major life activities; Has a record of such an impairment; or Is regarded as having such an impairment. The ADA further defines “a...

Recently we reminded our readers here about the new regulations to the Illinois Wage Payment and Collection Act, which include, among other changes, the requirement that employers “[R]egardless of an employee’s status as either an exempt, administrative employee, executive or professional…” maintain accurate records of hours worked. Many employers continue to scratch their heads, wondering why this requirement exists and more importantly what to do in order to comply with it. Let’s first address the question of why employers must now keep time records of exempt employees. Certainly, a truly exempt employee is  not paid hourly nor eligible for overtime, so what is the necessity for time records? Moreover, there is no penalty to an employer for failure to keep accurate time records of hours worked of exempt employees for overtime purposes, because they are ineligible, as long as they are not misclassified as exempt. It is likely that the new requirement to maintain time records ...

Employers know that in order for an employee to qualify for FMLA protection, that employee must have a serious health condition that makes the employee unable to perform the functions of his or her job.  A “serious health condition” is defined by statute as “an illness, injury, impairment, or physical condition that involves A) inpatient care in a hospital, hospice, or residential medical care facility; or B) continuing treatment by a health care provider.”  A great number of trees have been sacrificed in the discussion of “continuing treatment” but relatively little time has been devoted to defining “inpatient care”. The DOL defines inpatient care as “an overnight stay in a hospital, hospice or residential care facility…” If that seems pretty clear, you have underestimated the abilities of litigants to parse every word. Take the case of Bonkowski v. Oberg Industries . Plaintiff Bonkowski was an employee with several apparent health conditions, including a deformed he...

The Illinois Department of Labor has passed new regulations concerning the administration of the Wage Payment and Collection Act.  Under the new regulations, an employer is required to notify an employee of his rate of pay in writing at the time of hiring.  Written notice is also required each time a change in the time, amount, or method of payment is made.  The employee’s continued employment is not regarded as consent to any modification that was not the subject of a written notification to the employee prior to the change, although an employee is presumed to have consented to the change if he continues to work after being notified in writing of the change. The regulations also provide that no employee can be required to enroll in a direct deposit arrangement unless the employee voluntarily accepts the arrangement and voluntarily designates a financial institution as the recipient of direct deposits.  Many employers now require direct deposit, and some collect...

Employer’s today can’t afford not to have strong Internet use policies in the workplace.  In an age of instant internet access, controlling the use of the Internet by employees on company time is imperative. Unfortunately, many employers either do not have a policy or they do not enforce it. This is a mistake for several reasons. First, if your employees are busy shopping on line, updating social networks or chatting with friends and family during the work day, productivity suffers. Internet use polices need to make clear that use of the Internet that is not related to the employee’s job duties and responsibilities is prohibited. The policy should also clearly state that the failure to abide by the Internet Use policy, will result in discipline including termination in appropriate cases. In addition, the cost of Internet misuse by employees results in the employer paying employees for time that was spent on non-work related activities. The cost to the employer over time ca...

On May 5, 2015, the U.S. Department of Labor submitted proposed new “white collar” overtime exemption regulations to the federal Office of Management and Budget for approval.  These regulations were produced in response to a March, 2014 order from the President to revise overtime exemption regulations in order to make more workers eligible for overtime pay.  While the proposed regulations have not been made public, it is certain that they will include a significant increase in the weekly salary that a worker must receive in order to qualify for a white collar (executive, administrative, professional) exemption from the overtime provisions of the Fair Labor Standards Act (FLSA). The current salary minimum, last revised in 2004, is $455 per week, or $23,660 per year. Speculation as to possible new salary thresholds has suggested figures of $42,000, $51,000, and $69,000 per year, the last having been the figure recommended in a letter to Secretary of Labor Perez by 30 Congre...

As of May 1, 2015, businesses that hope to work with Cook County better ensure they have no wage violation findings against them. The new Cook County Wage Theft Ordinance became effective that date which allows the County to refuse to do business with any business that has been found in violation of state or federal wage payment laws, including the Fair Labor Standards Act, the Illinois Wage Payment and Collection Act, the Illinois Employee Classification Act as well any other state or federal wage laws.    The stakes are pretty high for employers who seek County business. Under the new ordinance, anyone who has admitted to or been found liable of repeated wage violations in court or by an administrative body in the prior five years, will be not only barred from entering into a contract with Cook County, but cannot even respond to a RFP or submit a bid to the County. Other penalties include the business being ineligible to receive a business license or a property tax ince...

Seeing an employee leave is usually not easy. Employers invest a lot in their employees, and often develop close relationships with them. More often than not, the employees who leave voluntarily are an employer’s best workers, leaving a significant void behind. While it might be difficult to lessen the emotional blow of a valuable employee walking out the door, there are a number of things an employer can do to lessen the blow to the business. This might, ironically, actually require an employer to pay an employee money when leaving. Employers should strongly consider providing separation agreements to certain employees. In a separation agreement, the employer gives the departing employee compensation in exchange for the employee agreeing to certain conditions. These conditions might include not working for a competitor or soliciting former clients. They might also include a confidentiality provision that would prevent the employee from disclosing trade secrets or business strategi...

Under state and federal law, newly elected officials are granted some discretion in replacing policymaking and confidential positions within the governmental organization.   Elrod v Burns , 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2nd 547 (1976). The recent case of Weiler v Village of Oak Lawn , 2015 WL 1538498 (N.D. IL March 31, 2015) provides a cautionary tale for newly elected officials. Weiler was terminated by the Village after the city manager proposed eliminating his department. Following the manager’s recommendation, the City council approved a budget eliminating Weiler’s department of Business Operations and his position with the village. Weiler filed a multi-count complaint in federal court alleging that his position was eliminated because three months earlier he had publicly accused the city manager of race discrimination and he had supported an opposing party’s candidates in the recent municipal election. The court found that elimination of Weiler’s departm...

This week in Castro v. DeVry University , the Seventh Circuit Court of Appeals ruled in favor of one of three plaintiffs, Michael Florez, and allowed his Title VII retaliation claim to proceed to trial.   Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against employees who engage in activity protected by the federal statute which includes complaints of discrimination in the workplace. 42 U.S.C. Section 2000e-3(a).  Florez alleged that DeVry retaliated against him in violation of Title VII after he complained to a human resources manager that his supervisor used racially and ethnically derogatory language in the workplace. DeVry transferred the supervisor three months later and terminated Florez ten months after the complaint.  The Seventh Circuit allowed Florez’s claim to proceed finding a genuine issue of material fact existed on retaliatory motive.  The employer’s stated reasons for termination were: 1) inconsistent performa...

Last Wednesday, New York City Mayor Bill de Balsio signed into law an ordinance prohibiting employers from checking an employee or job applicant’s credit history. The ordinance prevents employers from ordering consumer credit reports, credit scores, or asking an employee or job applicant to provide this information.  New York joins a growing list of cities and states that prohibit employers from inquiring about an employee or job applicant’s credit history, a list which includes both the state of Illinois and the City of Chicago. Illinois’s ban on employee and job applicant credit checks is set forth in the Employee Credit Privacy Act (820 ILCS 70/1). This law is similar to New York’s, prohibiting an employer from performing a credit check on an employee or job applicant or asking an employee or a job applicant about his or her credit history. Certain employers, however, are exempt from the Act, including banks, insurance companies, surety businesses, debt collectors, and certa...

In another installment of our Get In Shape For Summer series for employers, the topic of what to pay seasonal or summer employees often arises. Three general rules apply to public and private employers alike as follows: 1. You Must Pay Minimum Wage. This is true at least for all your summer employees, although the minimum wage rate varies depending on if the employee is over or under the age of 18. Currently the state minimum wage rate in Illinois is $8.25 for employees over the age of 18.  Employers are allowed to pay $.50 less per hour to employees who are under the age of 18. Employers should note that while the state has set a minimum wage rate, some municipalities have set that rate higher for employers within their community. Check your local ordinances to ensure that you’re paying the proper minimum wage rate. 2. You Can Take Tip Credit: If your summer help is working in an assignment where employees regularly receive more than $30 per month in tips, employers ar...

Spring is fully upon us and summer is not far away.  For municipalities, park districts, and other units of local government, this is the hiring season for employees that we are accustomed to call “seasonal employees”.  But the term “seasonal employees” takes on different meanings depending upon the context in which it is used, and sometimes the context is such that the meaning is entirely different than we might expect.    Let’s start with the Illinois Public Labor Relations Act (the “IPLRA”).  Under the IPLRA, there are no “seasonal employees”.  The closest term to “seasonal employees” in the IPLRA is the term “short-term employees”.  Short-term employees are employees who are hired for two calendar quarters or less and have no expectancy of recall or rehire for any subsequent period of time. Employees who meet this definition are excluded from an appropriate unit for collective bargaining purposes.  Employees who do not meet this definitio...

With a combination of warmer weather and the influx of seasonal (often student) workers, employers often adopt a more relaxed dress code for summer months.  As the layers of clothing come off, employers need to be aware of the potential legal liabilities associated with enforcing their summer dress codes.  Two concerns generally arise when establishing a dress code at work: 1) Freedom of speech or expression claims and 2) discrimination claims based on either gender or religion. Dress codes  are most commonly challenged as a violation of an employee’s right to freedom of expression when they prohibit wearing of religious or political symbols. This issue may arise more frequently with student workers as a result of the popularity of “body art” and more revealing clothing that exposes the art, although it may always be an issue when an employer’s dress code impacts an employee’s ability to wear or display facial hair, tattoos or religious symbols.  Courts will ana...

In our third installment of the Workplace Report’s “Get In Shape For Summer” series, it is important for employers to keep in mind the dangers facing seasonal employees include not only physical injuries, but also harassment and discrimination in the workplace. Since seasonal employees are usually significantly younger and more inexperienced than their fellow workers or supervisors, they are often targets of unlawful discrimination and harassment. Discrimination happens to employees of all ages, but offenders sometimes single out teen workers because they think they won’t know any better.  Often times, teens or college-age workers don’t know that they are being harassed or that it is illegal, and don’t know what they should do about it. In addition, even if they do know they are being harassed in the workplace, many don’t report it because they think it could cost them their jobs.  It is important for employers to inform seasonal employees that harassment and discrimi...

In April 2010, in the midst of recovery from the great recession of 2008, the U.S. Department of Labor issued new guidance on the use of unpaid interns in the private sector.  The guidance provided a six part test to determine whether or not the internship qualified as an educational exception to wage payment laws.  Failing the six part test causes an internship to be subject to pay for time spent in the program.  This six part test is also used for the definition of an intern found in the Illinois Human Rights Act.  The Act was amended effective January 1, 2015 to include interns as employees for purposes of sexual harassment coverage.  The six part test is: The internship is similar to training which would be given in an educational environment; The internship experience is for the benefit of the intern; The intern does not displace regular employees, but works under close supervision.  The employer derives no immediate advantage from the activ...

It’s time to get in shape for summer. Summer employees in your workplace that is.  The weather is suddenly warmer and high school and colleges will soon be out for the summer. It’s the time of year when employers make their plans make their plans for summer projects and hire seasonal employees. We at the Workplace Report are devoting the entire week to issues surrounding hiring, paying, monitoring and finally ending employment of your seasonal workers.  While the bulk of seasonal or summer employees are older high school and college students, those over the age of 16, some employers hire students under the age of 16 years old. Special rules apply to the employment of these workers.  First of all, Illinois child labor laws generally prohibit the hiring of anyone under the age of 14, even for part time work. Two notable exceptions apply for 13 year olds who caddy and 12 and 13 year olds who officiate at youth sports activities for not for profit organizations, pa...

Overlooking and mismanaging transgender discrimination in the workplace can have disastrous results for both the employer and employee.  Unfortunately, many transgender people have experienced discrimination in the workplace, either because their gender identity does not match the sex they were assigned at birth, or because they are perceived as failing to conform with stereotypical expectations of sex-appropriate appearance, dress, and behavior. It may seem obvious that firing someone from their job “because of [his or her] sex” would include discrimination against transgender people. However, courts have historically not been sympathetic to transgender people, having traditionally held that they were excluded from protection under federal employment laws.  In recent years, a number of federal district courts have held that transgender or gender non-conforming people are protected under federal sex-discrimination laws such as Title VII. As a result, transgender people now h...